(Cite as: 1991 WL 206819 (E.D.Wis.))
=> or as 774 F.Supp. 1163 (E.D. Wis.)
The UWM POST, INCORPORATED, Lafi Abdalla, Stephanie Bloomingdale, Kent
Farnsworth, Theresa Flynn, Richard D. Leonard, Michael J. Mathias, Marcia
Meyer, Ron Novy, Robin Pharo, Carrie Worthen and John Doe, Plaintiffs,
v.
BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant.
90-C-328.
United States District Court,
E.D. Wisconsin.
Oct. 11, 1991.
ORDER
WARREN
*1 On March 29, 1990, the UWM Post, Inc. and others ("plaintiffs") filed
this action seeking that this Court enter a declaratory judgment that Wis.
Admin. Code s UWS 17.06(2) (the "UW Rule") on its face violates: (1)
plaintiffs' right of free speech guaranteed by the First Amendment to the
United States Constitution and by Article I, Section 3 of the Wisconsin
Constitution and (2) plaintiffs' right to due process and equal protection of
the laws guaranteed by the Fourteenth Amendment and by Article I, Section 1 of
the Wisconsin Constitution. In addition, plaintiffs request that this Court:
(1) enter a permanent injunction prohibiting the Board of Regents of the
University of Wisconsin System (the "Board of Regents" or the "Board") and its
agents and employees from enforcing the UW Rule; (2) order the Board of
Regents to vacate the disciplinary action taken against plaintiff John Doe
under the UW Rule and expunge from his files all records related to that action
and (3) award plaintiffs their reasonable attorneys' fees and costs pursuant to
42 U.S.C. s 1988.
Now before Court are the parties' cross motions for summary judgment.
I. BACKGROUND
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. [FN1] For example, several highly publicized
incidents involving fraternities occurred at the University of Wisconsin--
Madison. In May of 1987, a fraternity erected a large caricature of a black
Fiji Islander at a party theme. Later that year, there was a fight with racial
overtones between members of two fraternities. In October of 1988, a
fraternity held a "slave auction" at which pledges in black face performed
skits parroting black entertainers. See the Capitol Times, Nov. 17, 1988, p.
25.
Design for Diversity directed each of the UW System's institutions to prepare
non-discriminatory conduct policies. In addition, pursuant to the plan, the
Board of Regents approved its "Policy and Guidelines on Racist and
Discriminatory Conduct," which stated the Board's general policy against
discrimination and provided guidance to the individual campuses in developing
their own non-discrimination policies. Finally, the Board established a
working group to draft amendments to the student conduct code, Chapter UWS 17,
to implement its policy system-wide. [FN2] With the help of UW-Madison Law
School Professors Gordon Baldwin, Richard Delgado and Ted Firiman, the group
developed a proposed rule based, in part, on a policy being developed
simultaneously at the UW-Madison. The professors agreed that the proposed rule
would likely withstand attack on First Amendment grounds if it included a
requirement that the speaker intended to make the educational environment
hostile for the individual being addressed.
*2 At its April 7, 1989 meeting, the Board of Regents discussed issuing the
proposed rule on an emergency basis in light of the increasing number of
incidents of racial and discriminatory harassment. By a 8 to 7 vote, the Board
decided not to promulgate the rule on an emergency basis. Instead, the Board
advanced the proposal through the regular administrative rule-making
procedure. On June 8, 1989, the Board held a public hearing to provide an
opportunity for interested persons to comment on the proposed rule. On June 9,
1989, the Board 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.
*3 Wis. Admin. Code s UWS 17.06(2).
Thus, in order to be regulated under the UW Rule, a comment, epithet or other
expressive behavior must:
(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.
In addition to the rule, the UW System issued and circulated to its students
and faculty a brochure which explains the rule and provides guidance as to its
scope and application. See Discriminatory Harassment: Prohibited Conduct
Under Chapter UWS 17 Revisions. This guide provides some illustrations of
situations where the UW Rule applies and does not apply:
Question 1. In a class discussion concerning women in the workplace, a male
student states his belief that women are by nature better equipped to be
mothers than executives, and thus should not be employed in upper level
management positions. Is this statement actionable under proposed UWS
17.06(2)?
Answer: No. The statement is an expression of opinion, contains no epithets,
is not directed to a particular individual, and does not, standing alone,
evince the requisite intent to demean or create a hostile environment.
Question 2. A student living in the University dormitory continually calls a
black student living on his floor "nigger" whenever they pass in the hallway.
May the university take action against the name-caller?
Answer: Yes. The word "nigger" is an epithet, and is directed specifically
at an individual. Its use and continuous repetition demonstrate the required
intent on the part of the speaker to demean the individual and create a hostile
living environment for him.
Question 3. Two university students become involved in an altercation at an
off-campus bar. During the fight one student used a racial epithet to prolong
the dispute. May the university invoke a disciplinary action?
Answer: Perhaps. Use of the epithet, and its direction to an individual
suggests a potential violation of proposed s. UWS 17.06(2); however, because
the episode occurred off campus, the intent to create a hostile environment for
university-authorized activities would be difficult to demonstrate. Additional
facts would have to be developed if disciplinary action were to be pursued.
Question 4. A group of students disrupts a university class shouting
discriminating epithets. Are they subject to disciplinary action under the
provisions related to regulation of expressive behavior?
Answer: Perhaps. It is clear that the students are subject to disciplinary
action for disrupting a class under existing s. UWS 17.06(1)(c)3. The question
is whether they also violated the newly created provision concerning expressive
behavior, because they shouted epithets while in the course of other
misconduct. If the epithets were directed to individuals within class, and
were intending to demean them and create an intimidating environment, then the
behavior might also be in violation of the provision concerning expressive
misconduct.
*4 Question 5. A faculty member, in a genetics class discussion, suggests
that certain racial groups seem to be genetically pre-disposed to alcoholism.
Is this statement subject to discipline under Chapter UWS 17?
Answer: No. faculty member is in no case subject to discipline under Chapter
UWS 17, since that chapter applies only to students. This situation would not
warrant disciplinary action under any other policy, either, since it is
protected expression of an idea.
C. ENFORCEMENT OF THE UW RULE
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." See Kassel
Aff., Ex. 19. The university found that the student entered the other
student's bedroom area as an uninvited guest and proceeded to use inappropriate
language and that later there was a confrontation between the student and
residents of the apartment. See id. The student was placed on probation and
required to consult with an alcohol abuse counselor and to "plan a project in
conjunction with the Center for Education and Cultural Advancement to help
sensitize [himself] to the issues of diversity." See id.
(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." See id., Ex.
20. Plaintiff John Doe was responding to statements the woman made in a
university newspaper about the athletic department. Id. The university placed
the student on probation for a semester and required him to perform twenty
hours of community service at a shelter for abused women. See id.
(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." Ex. 21. The student
also stated that "Whites are always getting screwed by minorities and some day
the Whites will take over." Id. The University placed the student on probation
for seven months and required him to participate in alcohol abuse assessment
and treatment.
(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. See id. Ex. 22. The student signed a "No
Contest Agreement" admitting violations of the rule as well as violations of
UWS 17.06(4) (conduct obstructing a university official) and his university
housing contract. See id. The university placed the student on probation for
eight months.
(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." See
id., Ex. 23. The university also charged the student with misidentifying
himself to an investigating officer. See id.. The student was alleged to have
violated the UW Rule as well as UWS 17.06(1) (endangering personal safety) and
17. 06(4) (obstructing a university official). Id. The student waived a formal
hearing and accepted a seven-month suspension.
*5 (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. & W Stipulation of Additional Facts, Ex. A. The university formally
reprimanded the student and placed him on probation for the remainder of the
semester. See id.
(7) The University of Wisconsin--Stevens Point brought a disciplinary action
under the UW Rule against a student who stole a TYME automatic bank teller card
and access number belonging to his dormitory roommate, who is Japanese. See
id., Ex. B. The student acknowledged that he had stolen the TYME card, that he
had twice intercepted and opened the Japanese student's correspondence from the
bank and that he had successfully withdrawn $60.00 from the Japanese student's
bank account using the TYME card and personal identification number he had
stolen. Id. The student also admitted that he was motivated by his resentment
that his roommate is Japanese and does not speak, English well. Id. The
student signed a no contest agreement, acknowledging that he had violated the
UW Rule as well as other provisions of the student conduct code. The student
was placed on probation through December 31, 1991 and required to take a course
in ethics or East Asian history and to make restitution. Id.
(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. See id., Ex. C. The university found that the student
violated the rule and another provision of the student code. See id. The
student, who was already on disciplinary probation, was required to view a
video on racism and write an essay and a letter of apology and was reassigned
to another residence hall. See id.
(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 gotnicetits.''
See id., Ex. D. The university placed the student on probation for the
remainder of his enrollment at the university and required him to apologize to
the female student, to refrain from any further contact with her and to obtain
psychological counseling. See id.
II. DiscussioN
Plaintiffs argue that this Court should strike down the UW Rule because it
violates the overbreadth and vagueness doctrines.
A. OVERBREADTH
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, 611 (1973). "Because First Amendment
freedoms need breathing space to survive, government may regulate in the area
only with narrow specificity." NAACP v. Button, 371 U.S. 4151 433 (1963).
*6 In spite of the above, the Supreme Court has held that "the overbreadth
doctrine is 'strong medicine" ' and that it should be employed "with
hesitation, and then 'only as a last resort.' " See New York v. Ferber, 458
U.S. 747, 769 (1982) (quoting from Broadrick at 613). only a statute that is
substantially overbroad may be invalidated on its face. Ferber at 769. A
statute should not be "held invalid on its face merely because it is possible
to conceive of a single impermissible application ... ' 'Houston v. Hill, 482
U.S. 451, 458 (1987) (quoting from Broadrick, 630 (Brennan, J. dissenting)).
Plaintiffs argue that the UW Rule has overbreadth difficulties because it is a
content-based rule which regulates a substantial amount of protected speech.
In Police Department of Chicago v. Mosley, the Supreme Court explained the
great import of protecting speech from content-based regulation.
[A]bove all else, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or
its content. To permit the continued building of our politics and culture, and
to assure self-fulfillment for each individual, our people are guaranteed the
right to express any thought, free from government censorship. The essence of
this forbidden censorship is content control. Any restriction on expressive
activity because of its content would completely undercut the "profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open."
408 U.S. 92, 95-96 (1972) (citations omitted).
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, 572
(1942). The categories include fighting words, obscenity and, to a limited
extent, libel. Collin v. Smith, 578 F.2d 1197, 1202 (7th Cir.1978), cert.
denied, 439 U.S. 916 (1978).
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 Chapinsky leaves the speech regulated by the UW Rule
unprotected by the First Amendment. The Board also argues that the Court
should find the UW Rule constitutional because its prohibition of
discriminatory speech parallels Title VII law. 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.
(1) WHETHER THE SPEECH REGULATED BY THE UW RULE FALLS WITHiN THE FiGHTING
WORDS DOCTRINE.
*7 (a) The Fighting Words Doctrine
The Supreme Court in Chapinsky set out the fighting words doctrine. The
Chapinsky Court stated:
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.
Chaplinsky at 571-72 (emphasis added and footnotes omitted).
Thus, the Chaplinsly Court set out a two-part definition for fighting words:
(1) words which by their very utterance inflict injury and (2) words which by
their very utterance tend to incite an immediate breach of the peace. The two
parts of the fighting words definition correspond to different concerns
regarding reactions to offensive expressions. See Rutzick, "Offensive Language
and the Evolution of First Amendment Protection," 9 Harv. C.R.-C.L.L.Rev. 1, 6
(1974). The first half relates to the prevention of psychological injury,
primarily in the form of emotional upset and injury to the ' 'sensibilities' '
[FN3] of addressees. The second half addresses the prevention of physical
retaliation likely to cause a breach of the peace.
While the Chaplinsky Court set forth a two-part definition for fighting words,
it applied only the second half. The Court did this because the statute in
question had been construed to regulate only language which tends to incite an
immediate breach of the peace. The statute involved in Chaplinsky, Chapter
378, s 2; of the Public Laws of New Hampshire, provided:
No person shall address any offensive, derisive or annoying word to any other
person who is lawfully in any street or other public place, nor call him any
offensive or derisive name, nor make any noise or exclamation in his presence
and hearing with the intent to deride, offend or annoy him, or to prevent him
from pursuing his lawful business or occupation.
See Chaplinsky at 569. The New Hampshire. Supreme Court construed Chapter
378 s 2 such that "no words [are] 'forbidden except such as have a direct
tendency to cause acts of violence by the person to whom, individually, the
remark is addressed.' " See id. at 573 (citing State v. Brown, 68 N.H. 200, 38
A. 731; State v. McConnell, 70 N.H. 294, 47 A. 267). The Chaplinsky court
held that the limited scope of Chapter 378 s 2, as construed by the New
Hampshire Supreme Court, did not-contravene the constitutional right of free
expression. See id.
Since Chaplinsky, the Supreme Court has narrowed and clarified the scope of
the fighting words doctrine in at least three ways. First, the Court has
limited the fighting words definition so that it now only includes its second
half. [FN4] Second, the Court has stated that in order for words to meet the
second half of the definition they must "naturally tend to provoke violent
resentment." Finally, the Court has held that fighting words must be "directed
at the person of the hearer."
*8 The Supreme Court has reduced the scope of fighting words to include
only words which tend to incite an immediate breach of the peace. In Gooding
v. Wilson, the Supreme Court held that Georgia Code Ann. s 26-6303 was
overbroad because "the Georgia appellate decisions [had] not construed s 26-
6303 to be limited in application, as in Chapinsky, to words that 'have a
direct tendency to cause acts of violence by the person to whom, individually,
the remark is addressed." ' 405 U.S. 518, 524 (1972). Thus, the Court held
that s 266303 was unconstitutional because it failed to meet the second half of
the fighting words doctrine.
Section 26-6303 provided: "Any person who shall, without provocation, use to
or of another, and in his presence ... opprobrious words or abusive language,
tending to cause a breach of the peace ... shall be guilty of a misdemeanor."
Id. at 519. The Court examined the dictionary definitions of the terms
"opprobrious" and "abusive' ' and found that they have greater reach than
"fighting" words.
Webster's Third New International Dictionary (1961) defined "opprobrious" as
"conveying or intended to convey disgrace" and "abusive" as including "harsh
insulting language." Georgia appellate decisions have construed s 26-6303 to
apply to utterances that, although within these definitions, are not "fighting"
words as Chaplinsky defines them.
Id. at 525 (citations omitted). Thus, even though, s 26-6303 regulated only
language which inflicts injury or affects the "sensibilities" of the hearer,
the Supreme Court held that it did not meet the requirements of the fighting
words doctrine because it was not limited to words which "tend to cause an
immediate breach of the peace.' ' [FN5]
In Collin v. Smith, the Seventh Circuit demonstrated its understanding that
the definition of fighting words now encompasses only words which tend to
incite an immediate breach of the peace. The court stated that "[a] conviction
for less than words that at least tend to incite an immediate breach of the
peace cannot be justified under Chaplinsky." See Collin 578 F.2d at 1203
(citing Gooding at 524-27). The Collin court held that three Village of Skokie
ordinances failed under the fighting words doctrine because the Village did not
rely on a fear of responsive violence to justify the ordinance. See id.
In addition to limiting the scope of fighting words to words which tend to
incite an immediate breach of the peace, the Supreme Court has also set forth a
stringent definition of "breach of peace." In Gooding, the Court stated that s
26-6303 failed to meet the requirements of the fighting words doctrine because,
among other things, the "appellate decisions construing the reach of 'tending
to cause a breach of peace' underscore that s 26-6303 (was] not limited. to
words that 'naturally tend to provoke violent resentment. ' ' ' See Gooding at
525 (citations omitted). The Court noted that a Georgia Court of Appeals, in
applying another statute, adopted the common law definition of "breach of
peace."
*9 "The term 'breach of peace' is generic, and includes all violations of
the public peace or order or decorum; in other words, it signifies the offense
of disturbing the public peace or tranquility enjoyed by the citizens of the
community.... By 'peace' as used in this connection, is meant the tranquility
enjoyed by the citizens of a municipality or a community where good order
reigns among its members."
Id. at 527 (quoting Samuels v. State, 103 Ga.App. 66, 67, 118 S. E.2d 231;
232 (1961)). The Gooding Court held that this definition of breach of peace
sweeps too broadly. See id. Thus, in order to constitute fighting words,
speech must not merely breach decorum but also must tend to bring the addressee
to fisticuffs. Texas v. Johnson, 109 S.Ct. 2533, 2542 (1989).
Finally, in Cohen v. California, the Supreme Court held that fighting words
must be directed at the person of the addressee. 403 U.S. 15 (1971). In
Cohen, the petitioner was convicted under California Penal Code s 1415 [FN6]
for wearing a jacket bearing the words "Fuck the Draft" in the corridor of the
Los Angeles Courthouse. The Court held that Mr. Cohen's conduct did not fall
within the fighting words doctrine because his statement "was clearly not
'directed to the person of the hearer.' ' 'See Cohen at 20 (quoting Cantwell v.
Connecticut, 310 U.S. 296, 309 (1940)).
(b) APPLICATION OF THE FIGHTING WPRDS DOCTRINE To THE UW RULE,
As stated above, in order to be regulated by the rule which the UW has
adopted, a comment, epithet or other expressive behavior must:
(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; and
(4) create an intimidating, hostile or demeaning environment for education,
university-related work, or other university-authorized activity.
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 alwaysl 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. [FN7] 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.
*10 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 I'disturb(s) the public peace or
tranquility enjoyed by the citizens of (a university] community. " However, it
does not necessarily tend to incite violent reaction. The creation of a
hostile environment may tend to incite an immediate breach of peace under some
circumstances. Nevertheless, the term "hostile" covers non-violent as well as
violent situations. [FN8] Moreover, an intimidating or demeaning environment
is unlikely to incite violent reaction. To "intimidate' ' means to "make
timid; threaten" or to "discourage or inhibit by or as if by threats." See
The American Heritage Dictionary (2nd College Ed.1976), p. 672. To "demean" is
to "debase in dignity or stature." See id. at 376. Given these definitions
of "intimidate' ' and "demean," this Court cannot properly f ind that an
intimidating or demeaning environment tends to incite an immediate breach of
the peace.
The Board of Regents argues, nonetheless, that it is "understandable to expect
a violent response to discriminatory harassment, because such harassment
demeans an immutable characteristic which is central to the person's
identity. " See Defendant's Combined Brief, p. 27. The Board states that "the
victim will feel compelled to respond, not just for his own dignity, but for
the dignity of his brothers and sisters of like color, national origin or
creed. " See id. The Board asserts, for example, that calling a black student
a "God damn nigger" is very likely to provoke a violent response. See id.
While the Board is correct that the language regulated by the UW Rule is
likely to cause violent responses in many cases, the rule regulates
discriminatory speech whether or not it is likely to provoke such a response.
It is unlikely that all or nearly all demeaning, discriminatory comments,
epithets or other expressive behavior which creates an intimidating, hostile or
demeaning environment tends to provoke a violent response. 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 TM 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. See Defendant's Combined Brief at 19-20 (citing Rutzick, "Offensive
Language and the Evolution of First Amendment Protection," 9 Harv. C.R.--C.L.
L.Rev. 1. 2 (1974)).
*11 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."
See Chaplinsky at 572. The Board is correct that the ChaR'insIM 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.
Moreover, the Seventh Circuit has stated that a balancing approach is
appropriate only for content-neutral speech regulation. See American
Bookseller Ass'n. Inc, v. Hudnut, 771 F.2d 323 (7th Cir.1985). In American
Booksellers, the Seventh Circuit stated:
The Court sometimes balances the value of speech against the costs of its
restriction, but it does this by category of speech and not by the content of
partic ular works." See id, at 331-332. In support of this assertion, the
American B ooksellers court cited John Hart Ely, "Flag Desecration: A Case
Study in the R oles of Categorization and Balancing in First Amendment
Analysis," 88 Harv. L.R ev. 1482 (1975), and Geoffrey R. Stone,, "Restrictions
of Speech Because of its Content: The Peculiar Case of Subject-Matter
Restrictions," 46 U. Chi. L.Rev. 81 (1978).
Professor Stone's article identifies two categories of governmental
restrictions of expression: content-neutral restrictions and content-based
restrictions. Professor Stone defined content-neutral restrictions as those
which "restrict communication without regard to the message conveyed." See id.
at 81. Examples of these restrictions include ' '[l]aws prohibiting noisy
speeches near a hospital, banning the erection of any billboards in residential
communities, or requiring disclosure of the names of leafletteers." Id. "In
judging the constitutionality of such restrictions, the Supreme Court engages
in a balancing of first amendment interests against competing government
concerns." Id.
Content-based restrictions, on the other hand, "restrict communication because
of the message conveyed." Id. Professor Stone listed as examples of these
types of restrictions "[l]aws prohibiting the publication of specific types of
'confidential' information, forbidding the hiring of teachers who advocate
violent overthrow of the government, or banning the display of the swastika in
certain neighborhoods." Id. The supreme Court has been especially wary of this
sort of regulation and has upheld content-based restrictions of speech only
when they fall within one of the well-defined, narrow classes of unprotected
speech. As Professor Stone noted:
*12 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.
Id. at 82 (footnotes omitted).
Given the American Booksellers court's clear statement [FN9] and its reference
to Professor Stone's article, it is evident that this Court may employ a
balancing approach to determine the constitutionality of the UW Rule only if it
is content neutral. It is clear, however, that the UW Rule regulates speech
based on its content. The rule disciplines students whose comments, epithets
or other expressive behavior demeans their addressees' race, sex, religion,
etc. See UW Rule s 2(a)(1). However, the rule leaves unregulated comments,
epithets and other expressive behavior which affirms or does not address an
individual's race, sex, religion, etc.
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. [FN10]
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 at 26. "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."
Id. 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.
*13 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.
American Booksellers at 330; see also Mills v. Alabama, 384 U.S. 214 (1966).
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. See supra at 20. 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.
*14 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, 311-312 (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. See id. at 313.
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 (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. See Tinker v. Des Moines Indep. Community School Dist., 393 U.S.
503 (1969); Healy v. James, 408 U.S. 169 (1972); Widmar v. Vincent, 454 U.S.
263 (1981). However, these cases allow time, place and manner restrictions on
speech, not restrictions based upon the speech's content. See Tinker at 513
("conduct by the student, in class or out of it, which f or any reason--whether
it stems from time, p1ace or type of behavior--materially disrupts class work
or involves substantial disorder or invasion of the rights of others is, of
course, not immunized by the constitutional guarantee of freedom of speech"
(emphasis added and citation omitted)).
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. See, e.g., Defendant's Combined Brief at 43. 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.
*15 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.
(3) PARALLEL TO TITLE VII LAW
The Board of Regents argues that this Court should find the UW Rule
constitutional because its prohibition of discriminatory speech which creates a
hostile environment has parallels in the employment setting. The Board notes
that, under Title VII, an employer has a duty to take appropriate corrective
action when it learns of pervasive illegal harassment. See Meritor Savings
Bank v. Vinson, 477 U.S. 57, 72 (1986).
The Board correctly states Title VII law. However, its argument regarding
Title VII law has at least three difficulties. First, Title VII addresses
employment, not educational, settings. Second, even if Title VII governed
educational settings, the Meritor holding would not apply to this case. The
Meritor Court held that courts should look to agency principles when
determining whether an employer is to be held liable for its employee's
actions. See id. Since employees may act as their employer's agents, agency
law may hold an employer liable for its employees actions. In contrast, agency
theory would generally not hold a school liable for its students' actions since
students normally are not agents of the school. Finally, even if the legal
duties set forth in Meritor applied to this case, they would not make the UW
Rule constitutional. Since Title VII is only a statute, it cannot supersede
the requirements of the First Amendment.
(4) THE BOARD'S PROPOSED LIMITING CONSTRUCTION
The Board of Regents requests that this Court apply a limiting construction to
the UW Rule if it finds the rule overbroad as written. The Board states that
' '[t]he Court [may] hold, if necessary, that the Rule is constitutional to the
extent that it sanctions discriminatory epithets, insults and personally
abusive comments but unconstitutional to the extent that it may be applied to
discriminatory opinions [with some intellectual basis [FN11]].' 'See
Defendant's Reply Brief at 7.
Plaintiffs argue that this Court must decline the Board's invitation to
interpret the UW Rule. In support of this assertion, plaintiffs cite Boos v.
Barry, 485 U.S. 312, 330 (1988). The Boos Court cited Grayned v. Rockford, 408
U.S. 104, 110 (1972) and Gooding at 520-521 (1972) for the proposition that
"federal courts are without power to adopt a narrowing construction to a state
statute unless such a construction is reasonable and readily apparent." See
Boos at 330.
*16 This Court finds that the Boos decision does not prevent the Court from
adopting the limiting construction offered by the Board of Regents. The
Board's proposed construction is reasonable and readily apparent since the
guide circulated with the UW Rule indicates that the expression of
discriminatory opinions and ideas is not prohibited by the Rule.See
Discriminatory Harassment: Prohibited Conduct Under Chapter UWS 17 Revisions,
Questions 1 and 5.
This Court, nonetheless, refuses to adopt the limiting construction offered by
the Board of Regents since that construction fails to solve the UW Rule's
overbreadth difficulties. The Board's construction does not prevent the Rule
from reaching a substantial amount of speech outside the traditional definition
of fighting words. Under the proposed construction, student speech violates
the UW Rule if it: (1) is discriminatory; (2) is directed at an individual;
(3) demeans the race, sex, religion, etc. of that person; (4) creates an
intimidating, hostile or demeaning environment and (5) lacks an intellectual
basis. As stated above, the first four elements do not ensure that the rule
covers only speech which tends to incite violent reaction. See supra, PP18-
20. Likewise, the fifth requirement does not prevent the rule from reaching
protected speech. Much speech which meets the first four elements of the UW
Rule and lacks intellectual support is unlikely to cause an immediate breach of
the peace. For example, the comment "you're just a dumb black, woman, or
homosexual," does not necessarily tend to incite violent reaction even if it
demeans the addressee and creates an intimidating, hostile or demeaning
environment.
In addition, the proposed limiting construction does not solve the UW Rule's
difficulties under the Board's proposed balancing test. The proposed
construction fails to aid the Board's arguments with respect to the benefits
side of the balancing test. The construction may reduce the number of
situations where the rule is applied to speech which is intended to inform or
convince the listener. However, as stated above, the First Amendment protects
speech for its emotive function even if it lacks cognitive value. The
construction may also tend to limit the reach of the rule to speech which is
unanswerable and constitutes a verbal assault on the person addressed.
Nonetheless, as mentioned to above, these considerations do not affect the
protected status of speech. Finally, the limiting construction may increase
the probability that the rule will be applied where a student's speech tends to
cause an immediate breach of the peace. Nevertheless, as stated above, the
rule will still cover many situations in which there is little likelihood of
violent reaction.
The Board's limiting construction also fails to make persuasive their
arguments with respect to the harms side of the balancing test. The
construction will ensure that the rule does not limit the diversity of opinions
on University of Wisconsin System campuses which have intellectual bases.
However, the First Amendment protects speech regardless of its intellectual
support. See Collin at 1203 ("[u]nder the First Amendment there is no such
thing as a false idea" (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339
(1974)).
*17 The limiting construction also fails to aid the Board's equal
protection argument since even under the proposed construction, the UW Rule
does not address discrimination caused by state actors. The construction also
does little to help the Board's argument based on its interest in preventing
interruption of educational opportunities since: (1) even under the limiting
construction, the rule amounts to more than a time, place and manner
restriction on speech and (2) as stated above, the Board's basis for this
argument is inconsistent with the fighting words doctrine. Finally, the
limiting construction fails to make the Board's interest in preserving orderly
and safe campuses a compelling one. As stated above, even under the
construction, the UW Rule will cover much speech which does not tend to incite
an immediate breach of the peace.
B. VAGUENESS
A statute is unconstitutionally vague when "men of common intelligence must
necessarily guess at its meaning." Broadrick v. Oklahoma, 413 U.S. 603, 607
(1973). A statute must give adequate warning of the conduct which is to be
prohibited and must set out explicit standards for those who apply it. Id.
These concerns apply with particular force where the challenged statute affects
First Amendment rights. Village of Hoffmann Estates v. The Flipside, Hoffmann
Estates, Inc., 455 U.S. 489, 499 (1982). Nonetheless, the chilling effect
caused by an overly broad statute must be real and substantial and a narrowing
construction must be unavailable before a court will set it aside. See Young
v. American Mini Theaters, 427 U.S. 50, 60 (1976).
In our case, plaintiffs argue that the UW Rule is unconstitutionally vague for
two reasons: (1) the phrase "discriminatory comments, epithets or other
expressive behavior" and the term "demean" are unduly vague and (2) the rule
does not make clear whether the prohibited speech must actually create a
hostile educational environment or whether speaker must merely intend to create
such an environment. Upon review, it appears that the phrase and term referred
to by plaintiff are not unduly vague. However, the rule is ambiguous since it
fails to make clear whether the speaker must actually create a hostile
educational environment or if he must merely intend to do so.
(1) "DisCRIMINATORY COMMENTS EPITHETS AND ABUSIVE LANGUAGE' ' AND ' 'DEMAN' '
Plaintiffs first argue that the phrase "discriminatory comments, epithets or
other expressive behavior" is unduly vague. In determining the clarity of this
phrase, it is helpful first to examine the definitions of its key terms. The
term "discriminatory" means "[marked by or showing prejudice; biased." i" The
American Heritage Dictionary, p. 404. "Comment" as used in the Rule, means
"[a) brief statement of fact or opinion, esp. a remark that expresses a
personal reaction or attitude: made a comment on the governor's speech." See
id., p. 297 (emphasis in original). "Epithet" is "[a] term used to
characterize a person or thing," "[a) term used as a descriptive substitute for
the name or title of a person," or ' '[a]n abusive or contemptuous word or
phrase." See id., p. 460. "Expressive" means ' '[s]erving to express or
indicate."
*18 These key terms appear to have reasonably clear meanings in the context
of the phrase "discriminatory comments, epithets or expressive behavior."
Plaintiff argues, however, that the mere recitation of dictionary definitions
does not show that the rule is reasonably clear since every word has a
definition. Plaintiff's argument would have force if the definitions of the
key terms were ambiguous in the context of the phrase in question or the UW
Rule. However, the meanings of the terms appear clear and definite in the
context of the phrase and the rule.
Plaintiffs also argue that the phrase is vague based upon the University of
Wisconsin--Parkside's failure to apply the UW Rule after a student called
another a "redneck." A University of Wisconsin--Parkside Associate Dean, Roger
Howard, found that "it would be very difficult to show that the term "redneck"
is by itself the equivalent of a discriminatory epithet." See Kassell Aff. Ex.
17.
It appears that Mr. Howard misapplied the phrase "discriminatory comments,
epithets or other expressive behavior." The Random House Dictionary defines
"redneck" as a "disparaging" name for "an uneducated white farm laborer." See
Random House Dictionary of the English Language (unabridged ed.1986), p. 1203.
In addition, The American Heritage Dictionary describes "redneck" as:
Slang. A member of the white rural laboring class, esp. in the southern
United States. 2. Offensive Slang. A person who advocates a provincial,
conservative, often bigoted socio-political attitude considered characteristic
of a redneck. See The American Heritage Dictionary, p. 1037 (emphasis in
original). Given these definitions of "redneck," Mr. Howard probably should
have found the student's use of the term constituted a discriminatory epithet.
However, this single improper application of a portion.of the UW Rule does not
make the rule vague. Thus, given the clear dictionary definitions of the key
terms in the phrase "discriminatory comments, epithets and other expressive
behavior," this Court finds that the phrase does not have vagueness
difficulties.
Plaintiffs next argue that the term "demean" is unduly vague. As stated above
to demean means to debase in dignity or stature. Thus, a student's speech can
violate the UW Rule only if it debases the race, sex, religion, etc. of the
addressee. This requirement appears reasonably clear and therefore should
provide adequate warning of the conduct prohibited by the UW Rule and should
set forth explicit standards for those who apply it.
Plaintiffs argue, however, that the requirement of an intent to "demean"
presents vagueness problems because it causes discriminatory comments, epithets
or other expressive behavior to violate the rule in one context and not in
another. To demonstrate this "problem, " plaintiff cites the application of
the UW Rule at the University of Wisconsin--Stout and the nonapplication of the
rule at the University of Wisconsin--Whitewater. The University of Wisconsin--
Stout applied the rule where a student called another a "nigger" during an
altercation. See Kassel Aff., Ex. 23, p. 2." In contrast, the University of
Wisconsin--Whitewater found that a white student had not violated the UW Rule
where he called a black student "nigger" as part of a verbal exchange which led
to a physical confrontation,. See id., Ex. 25. The University explained that
there was no violation because:
*19 .[The student charged) was raised in a racially mixed neighborhood in
Chicago. It was common for both blacks and whites in this environment to refer
to blacks who were not respected, liked or appreciated as "nigger." As [the
student] stated, "it's like calling someone an ass or names like that.["] [The
student addressed] agreed and stated that this kind of language/name calling
exists in his neighborhood as well. [He] also stated that he did not think
[the] intent [of the student charged) was to demean him personally or racially.
Id.
Although different results were reached in the above cases, those results were
not inconsistent. In the first case, the University of Wisconsin--Stout found
that the student's comments demeaned his addressee on the basis of her race.
See Kassel Aff., Ex. 23, p. 3. In contrast, the University of Wisconsin--
Whitewater reasonably found that the student charged did not demean the race of
his addressee.
The differing results in the two cases were not due to any vagueness in the
term "demean. " Rather, they arose from the high standard of proof required
by s 2(a)(1) of the UW Rule. Since the rule requires that a student must
intentionally demean his or her addressee's race, sex, religion, etc. in order
to violate the rule, it is likely that the rule is inapplicable in many
instances where students use discriminatory language.
Thus, the phrase "discriminatory comments, epithets and expressive behavior"
and the term "demean" do not appear to have vagueness difficulties.
Nonetheless, as stated above, these terms fail to solve the UW Rule's
overbreadth difficulties. The rule clearly reaches beyond the narrow confines
of the fighting words doctrine. Although the above terms give students
adequate notice of the speech which the rule prohibits and provides explicit
standards f or those who apply the rule, the terms nevertheless allow the rule
to prohibit protected speech.
(2) AMBIGUITY
The Court concurs with plaintiffs that the UW Rule is unduly vague because it
is ambiguous as to whether the regulated speech must actually demean the
listener and create an intimidating, hostile or demeaning environment for
education or whether the speaker must merely intend to demean the listener and
create such an environment. As plaintiffs note, the rule itself suggests that
prohibited speech must actually demean the addressee and create an
intimidating, hostile or demeaning environment. See UW Rule s 2(a). However,
the illustrative examples published with the rule in the Wisconsin
Administrative Code suggest that there is no need to prove that a student' s
speech had any effect on the listener or the educational environment. See UWS
17. 06(2)(c). In addition, the UW-Milwaukee has interpreted the rule to
require only the intent to demean or to create a hostile environment. Kassel
Aff., Ex. 31.
This Court could correct this ambiguity in the UW Rule by interpreting it to
require either: (1) the intent to demean the listener and to create an
intimidating, hostile or demeaning educational environment or (2) the intent to
and effect of demeaning the listener and creating such an environment.
However, neither interpretation of the UW Rule saves the rule from its
overbreadth difficulties. Accordingly, this Court will not interpret section
(2)(a) of the rule.
III. CONCLUSION
*20 The founding fathers of this nation produced a remarkable document in
the Constitution but it was ratified only with the promise of the Bill of
Rights. The First Amendment is central to our concept of freedom. The God-
given "unalienable rights" that the infant nation rallied to in the Declaration
of Independence can be preserved only if their application is rigorously
analyzed.
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.
Based on the above, this Court GRANTS plaintiffs' motion for summary judgment
and DENIES the Board of Regents' motion for summary judgment. Accordingly,
this Court ORDERS: (1) that a declaratory judgment be entered that the UW Rule
on its face violates the overbreadth doctrine and is unduly vague; (2) that
the Board of Regents and its agents and employees are permanently enjoined from
enforcing the UW Rule and (3) that the Board of Regents is required to vacate
the disciplinary action taken against plaintiff John Doe under the UW Rule and
to expunge from his file all records related to that action.
The Court requests that the parties submit brief ing on plaintiffs' request
for reasonable attorneys' fees and costs. Plaintiffs should submit its brief
and affidavits within twenty (20) days of the entering of this Decision and
Order. The UW System shall have an additional ten (10) days to file a response
and plaintiffs another seven (7) days to file a reply.
S0 ORDERED this day of October, 1991, at Milwaukee, Wisconsin.
FN1. Concerns regarding discriminatory harassment are not unique to the
University of Wisconsin System. At least fifteen colleges and
universities, including nine state institutions, have adopted or are
considering restrictions on discriminatory hate speech directed at members
of historically disadvantaged groups. 103 Harv. L. Rov. 1397 (1990)(citing
Wilson, "Colleges" Anti-Harassment Policies Bring Controversy over Free-
Speech Issues,1 Chronicle of Higher Educ., Oct. 4, 1989, at A I, Col. I)
FN2. At oral argument on the parties' motions, the Board's counsel
stressed that the University of Wisconsin System does not rely solely upon
the UW Rule to combat the problem of discriminatory harassment among
students. Counsel stated that the UW Rule is morely a "two percent
solution." He noted that the system also set and articulated community
standards, a "thirty percent solution," and increased education regarding
diversity and racism, a "sixty-eight percent solution."
FN3. The Supreme Court employed the term loongibilities, in Street v. New
York, 394 U.S. 576 (1969). The Street Court stated that the state had:
an interest in preventing appellant from uttering wordo so inflammatory
that they would provoke others to retaliate physically against him, thereby
causing a breach of the peace; [and) an interest in protecting the
sensibilities of passers-by who might be shocked by appellant's words about
the American flag....
Id. at 591 (emphasis added).
FN4. The Board concurs that the first half of the fighting words
definition now constitutes protected speech. See Defendant's Combined
Brief at 4.
FN5. Likewise, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), the
Supreme Court hold that Now Orleans ordinance 828 M.C.S. s 49-7 had a
broader sweep than the definition of 'fighting words.' Section 49-7
provided:
It shall be unlawful and a breach of the peace for any person wantonly to
curse or revile or to use obscene or opprobrious language toward or with
reference to any member of the city police while in actual performance of
his duty.
See id. at 132. The Supreme Court previously remanded this case to the
Louisiana Supreme Court for reconsideration in light of Gooding. See id.
at 131. The Louisiana Supreme Court did not ' 'refine or narrow [the words
of s 49-71, but took them as they stood: 'The prescriptions are narrow and
specific wantonly cursing, reviling, and using obscene or opprobrious
language.' " See id. at 132 (citations omitted). The Supreme Court found
that 'nothing in the opinion of the Louisiana Supreme Court ... [made) any
meaningful attempt to limit or properly define--an limited by Chaplinsky
and Gooding--opprobrious,' or indeed any other term in s 497.' ' See id.
at 133.
More recently, in Texas v. Johnson, the Supreme Court hold that the act of
flag burning does not fall within the class of fighting words' because it
is unlikely to incite an immediate breach of the peace. 109 S.Ct. 2533,
2S42 (1989).
Nor does Johnson's expressive conduct fall within that class of "fighting
words" that are likely to provoke the average person to retaliation, and
thereby cause a breach of the peace." No reasonable onlooker would have
regarded Johnson's generalized expression of dissatisfaction with the
policies of the Federal Government an a direct personal insult or an
invitation to exchange fisticuffs.
Id. (citations omitted).
FN6. Section 1415 prohibits 'maliciously and willfully disturbing) the
peace or quiet of any neighborhood or person ... by. offensive conduct. at
1Id.
FN7. The Board notes that discriminatory harassment has harmful effects on
its victims. "The negative effects of hate messages are real and immediate
for the victims.' Matsuda, at 2336. Studies show that victims of
discriminatory harassment have experienced physiological symptoms and
emotional distress ranging from fear, rapid pulse rate, difficulty in
breathing, nightmares, post-traumatic stress disorder, hypertension,
psychosis and simmediateuicide. Id.
The injuries to victims of discriminatory harassment demonstrate the high
costs to society which such speech imposes. However, an stated above, the
Supreme Court has determined that speech does not lose its protected status
merely because it inflicts injury or disgrace onto its addressees.
FN8. The American Heritage Dictionary defines the adjective "hostile'
as: "(1) of or pertaining to an enemy. (2) Fooling or showing enmity;
antagonistic. (3) Not hospitable.' These definitions of hostile are
likely to cover speech which does not invite violent response.
FN9. The American Booksellers court' s reluctance to apply a balancing
approach to content-based restrictions is well founded. The First
Amendment' s protection of speech constitutes a pro-commitment by the
government to refrain from restricting the expression of ideas. This pro-
commitment ensures the ' 'continued building of our politics and culture'
as well an ' 'self-fulfillment for each individual.' '
This commitment to free expression must be unwavering, because there exist
many situations where, in the short run, it appears advantageous to limit
speech to solve pressing social problems, such an discriminatory
harassment. If a balancing approach In applied, these pressing and
tangible short run concerns are likely to outweigh the more amorphous and
long run benefits of free speech. However, the suppression of speech, even
where the speech's content appears to have little value and great costs,
amounts to governmental thought control. An individual instance of thought
control may not appear to impose great costs on society. However, if a
balancing tent is used there are likely to be many such instances. Taken
an a whole, theme instances will work to dissolve the great benefits which
free speech affords.
FN10. For example, it in 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. See supra, p. 8.
FN11. Presumedly, the Board's proposed limitation is intended to remove
only discriminatory opinions with intellectual bases from the reach of the
UW Rule. The term 'opinion' means '[a] belief or conclusion hold with
confidence, but not substantiated by positive knowledge or proof.' ' See
The American Heritage Dictionary, p. 872. This definition of opinion would
appear to reach all beliefs or conclusions, regardless of their
intellectual bases. However, if this definition of opinion in used in the
Board's limiting construction, the construction swallows the rule. The
comment 'you're just a dumb black, woman or homosexual, and the epithets
' 'nigger,' ' ' 'bitch,' ' and ' 'fag' ' all express a speaker's opinion
regarding a characteristic of his or her addresses. Yet this comment and
these epithets are among the most base speech addressed by the UW Rule.
Accordingly, unless the Board's proposed limitation on the Rule in confined
to opinions with some intellectual basis, the limitation will defeat the
rule.
FN12. The student actually called his addressee a "piece of shit nigger,
and later stated ' 'fuck you nigger.' ' See id.
E.D.Wis.,1991.
The UWM POST, INCORPORATED, Lafi Abdalla, Stephanie Bloomingdale, Kent
Farnsworth, Theresa Flynn, Richard D. Leonard, Michael J. Mathias, Marcia
Meyer, Ron Novy, Robin Pharo, Carrie Worthen and John Doe, Plaintiffs, v. BOARD
OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant.