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Which Way Does the Scale Tip? Utility of University Hate Speech Codes: Protection and Promotion of Religious Free Exercise Rights of Students KATRICE PETERSON1 I. HYPOTHETICAL2 Imagine Jessica, a young, vibrant eighteen-year-old and recent high school graduate, embarking upon a new experience in her life attending college. She decides that college is the next step to a better life for both her and her family. Jessicas religion is one of the most important aspects of her life. Her local church group is a non-denominational, Christian-based organization that promotes Christian principles, such as values of non-violence, refraining from drug and alcohol use, abstinence until marriage, constant prayer, and other similar principles. Although Jessica was sad to depart from this chapter of her life, she left for college with excitement and was eager to begin anew, while maintaining her own self-identity. Once Jessica arrives on the campus of Sunflower University, she is overwhelmed, yet intrigued, by the immense amount of student involvement taking place, including a gayactivist booth advocating for gay adoption, an animal rights group passing out leaflets on how to stop animal cruelty, and a racial diversity group encouraging students to take a stand against racial violence. However, Jessica is disturbed by an Atheist group chanting, Death to and hate for all Jews, Hindus, Christians, and all who believe in a Higher Being!

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Florida A&M University College of Law, J.D., 2012; Vanderbilt University, B.A., 2009. Special thanks to Professor Nise Nekheba, the Peterson family, and Jonathan Field. 2 The hypothetical is fictitious in nature. It was adopted primarily from research gathered while taking a Florida A&M University Seminar on Law and Religion. The seminar focused on students who are physically and verbally attacked and who face ridicule from other students, faculty, administration, and campus visitors on college and university campuses in the United States and internationally because of their religious beliefs and practices.

There is no God! Jessica was outraged by these statements and actually feared for her life. The foregoing hypothetical helps to illustrate that colleges and universities struggle to provide their students the constitutional right to exercise their religious beliefs and practices.3 Yet still, colleges and universities must offer a safe learning environment for their student body as a whole to protect students who face attack by the religiously motivated hate speech of their fellow peers because of differing religious thoughts and beliefs. II. INTRODUCTION University hate speech codes at public colleges and universities provide protection for and promote the religious free exercise and free speech rights of students and the right against the establishment of a religion under the Establishment Clause as guaranteed by the First Amendment.4

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U.S. CONST. amend. I (Congress shall make no law . . . prohibiting the free exercise [of religion].). 4 Id. (noting that University hate speech codes afford students the free exercise rights to engage in both religiously motivated speech and free speech as a realm of ones expression; the codes also prohibit schools from establishing or endorsing any religion as guaranteed under the Establishment Clause of the First Amendment); see Ira C. Lupu & Robert W. Tuttle, Symposium, Conflicts 101: Higher Education and the First Amendment: The Cross at College: Accommodation and Acknowledgement of Religion at Public Universities, 16 WM. & Mary BILL OF RTS. J. 939, 939-40 (2008) (explaining that the President of the College of William & Mary directed that a cross, which normally had been displayed on the alter of the schools chapel, be removed because permanent display of it treated non-Christian students as outsiders); see also Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (OConnor, J., concurring); (Endorsement sends a message to nonadherents that they are outsiders [and] not full members of the community.); see Marsh v. Chambers, 463 U.S. 783, 792-95 (1983) (holding that the practice of a state-sponsored prayer did not violate the Establishment Clause); see also Lynch, 465 U.S. at 687 (rejecting a challenge to the city of Pawtuckets Christmas display by stating that history reflects a pattern of official recognition of religions significance and [t]here is an unbroken history

This article primarily shows how public colleges and universities within the United States use university hate speech codes as a means to balance the interests of student speakers who wish to exercise their religious beliefs as guaranteed under the First Amendment of the United States Constitution with the interests of students who feel threatened and targeted by the religiously motivated hate speech of those student speakers. Throughout this article, the term balance will also be referred to as the balancing test. The balancing test, used by many public colleges and universities within the United States and throughout the world, is based on promoting and protecting the free exercise rights of college students as guaranteed under the First Amendment. The balancing test also allows for public colleges and universities to not run afoul of the Establishment Clause. Thus, university hate speech codes are able to withstand alleged violations of the Free Exercise Clause in situations where the religious speech of students is suppressed. Moreover, these codes have the potential to increase religious tolerance, reduce religious discrimination, and offer a forum for religious public debate that is capable of furthering human [religious] affairs.5 Additionally, these codes serve as a means for undergraduate institutions to fulfill their duty of protecting students against religious discrimination and harassment from fellow students, administration, faculty, and staff.6 This article argues that

of official acknowledgment . . . of the role of religion in American life . . . .). 5 Otto-Preminger-Institut v. Austria, Application. No. 13470/87, Eur. Ct. H.R., 49 (1994), http://www.echr.coe.int/echr (click Case-Law, choose Decisions and judgments, then select HUDOC Database, then click HUDOC, search the case name in the Text box, and click the first search result) (noting that the applicant announced a series of film showings that disparaged religious doctrines by portraying the God of the Jewish, Christian, and Islamic religions as a senile old man who befriends the Devil; all public showings of the film were prevented; the Court held that freedom of expression undertakes certain duties and responsibilities and there is an obligation to avoid expressions that are gratuitously offensive to others and that do not contribute to society). 6 See Alexander Tsesis, Burning Crosses on Campus: University Hate Speech Codes, 43 CONN. L. REV. 617, 620 (2010) (The advocates of campus hate speech codes claim that their aims are not novel. They are construed as a balancing of interests that is already commonplace with other limitations on speech, such as those enforced through copyright,

religiously motivated hate speech is unprotected under the First Amendment and that the social considerations of protecting students from religious discrimination and derogation far outweigh the student speakers free exercise rights when it amounts to true threats. This article adds to the utility of hate speech codes because they, in essence, protect the free exercise and free speech rights of students. However, the majority holds that university hate speech codes violate the Free Exercise Clause, are vague and overbroad, impose content-based restrictions, and thus are unconsitutional. There are six parts contained in this paper, including the above Hypothetical and Introduction as parts one and two, respectively. Part three discusses the foundation of First Amendment jurisprudence, which protects the free exercise and free speech rights of students and society at large, and considers the rationale for public colleges and universities not establishing any religion under the Establishment Clause. Part four discusses the growing problem of religious discrimination and hate speech against students on college campuses. In turn, this article shows how such problems manifest into the free exercise rights of students being burdened by fellow students and administration. Part five explores the justifications and rationales advanced in support of university hate speech codes and considers their ability to protect the free exercise rights of students.7 Finally, part six concludes with the importance and relevancy of university hate speech codes. III. FIRST AMENDMENT CONSTITUTIONAL PROTECTIONS FOR STUDENTS The First Amendment of the United States Constitution states, Congress shall make no law respecting

libel, conspiracy, and fighting words statutes. A colleges mission to further intellectual freedom is unimpaired by limitations on intimidating campus expression; consequently, some scholars argue that curbing racist and xenophobic speech would not undermine the core purpose of higher education, the acquisition of truth. This school of thought holds either that hate speech is outside that scope of the First Amendment or counterbalanced by weightier social considerations.). 7 Arguments against university hate speech codes are mentioned throughout this article.

an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.8 For purposes of this paper, the First Amendment affords three constitutional safeguards for the religious expression of public college and university students in the United States, including the Free Exercise Clause, the Free Speech Clause, and the Establishment Clause.9 A. Free Exercise Clause The Free Exercise Clause of the First Amendment has a purpose of protecting religious liberty[,] protecting freedom of conscience and the ability to practice ones religious beliefs by preventing government coercion.10 Thus, it embraces not only the freedom to religious thoughts and beliefs, but also the freedom to manifest or act upon those religious beliefs in worship, observance, practice, and teaching.11 In addition to protecting religious beliefs and acts,

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U.S. CONST. amend. I. See generally Kelly Sarabyn, Free Speech at Private Universities, 39 J. L. & EDUC. 145, 145 (2010) (At public colleges, the First Amendment solves the conflict between a university's policies promising free speech and its speech-restrictive policies by rendering the speech-restrictive policies unconstitutional. Private colleges, on the other hand, are not state actors, and thus, the First Amendment does not stop them from enacting speech-restrictive policies. ). 10 Steven K. Green, Symposium, A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States: Religious Liberty as a Positive and Negative Right, 70 Alb. L. Rev 1453, 1455 (2007); accord Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940) (stating that the First Amendment forestalls compulsion by law of acceptance of any form of worship. [The] [f]reedom of conscience and [the freedom] to adhere to [any] such form of worship [an] individual may choose cannot be restricted by law; th[ose] are safeguarded. Thus, [the First Amendment] embraces two concepts, -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.). 11 Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963) ([F]ree Exercise clause recognizes the value of religious training,

teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any
compulsion from the state.); see W. COLE DURHAM, JR. & BRETT G.

the purpose of the Free Exercise Clause is to secure religious liberty in the individual by prohibiting any invasions of such liberty by civil authority.12 In Chalifoux v. New Caney Independent School District,13 a dress code burdening religious exercise was found to violate the student plaintiffs free exercise rights.14 The dress code at issue barred the wearing of gang-related apparel, but did not define what clothing qualified as gang-related.15 Students were told they could not wear Catholic rosaries because the school had identified rosaries as gang-related apparel and therefore, their display on campus had been prohibited.16 The students claimed that because the school district considered rosaries as gang-related apparel, the dress code constitutes an infringement upon their free exercise rights.17 Here, the plaintiffs extended a rosary, an object central to Orthodox Catholicism, into their public, daily lives and wore it for

SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 83, 165 (Vicki Been et al. eds., Aspen Publishers 2010) ([F]ree exercise of religion embraces two concepts, . . . freedom to believe and freedom to act.). 12 Sch. Dist. of Abington Twp., 374 U.S. at 223 (noting that the government may restrict Free Exercise and Free Speech rights if they pass the strict scrutiny test discussed in part five of this paper). 13 Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997). 14 Id. at 671. 15 Id. at 663. The New Caney I.S.D. dress code, outlined in a Student Handbook, prohibited the wearing of "gang-related apparel . . . in school or at any school-related activity, id. at 663. To inform students of the parameters of the prohibition on gang-related apparel, the Handbook stated that, "A sample list of specific items that law enforcement agencies consider gang-related is available in the principal's office for viewing, id. at 663-64. However, evidence produced at trial indicated that the New Caney High School principal's office did not in fact maintain a list of gang-related apparel, id. at 664. The only list of prohibited apparel published by New Caney I.S.D., found in the Student Handbook, did not include rosaries. The Handbook stated, inter alia, that the following gangrelated apparel is prohibited in school or at any school-related function: 1) Oversized apparel, including baggy pants, worn low on the waist; overalls with one strap unfastened; pants cut off below the knees and worn with knee socks; and pants not fitting at the waist or having properly sewn hems; 2) Any attire that identifies students as a gang-related group; and 3) Baseball caps, hair nets, bandanas, and sweatbands, id. at 664. 16 Id. at 663. 17 Id.

religious purposes.18 The rosary is deeply rooted in Orthodox Catholic beliefs, and its use by Catholics is unique among all Christian denominations.19 Thus, the court held that the schools dress code violated the plaintiffs free exercise rights.20 There are extensive lines of cases drawing upon alleged violations of the free exercise clause.21 Pursuant to Chalifoux and other case precedents, it is evident that under the Free Exercise Clause, the government may not disparage religion or infringe upon the free exercise rights of citizens. Religious liberty is one of the core founding values of the United States and must be protected.22

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Id. at 670. Id. 20 Id. 21 Lyng v. Nw. Indian Cemetery Protective Assn, 485 U.S. 439 (1988) (discussing the free exercise claims of Native Americans who claimed that the proposed upgrade of an unpaved road in the Six Rivers National Forest near sacred archaeological sites would infringe on their ability to engage in spiritual rituals); Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993) (noting that the plaintiff challenged a state ordinance restricting the church and its congregants rights to practice animal sacrifice as a method of religious observance); Katcoff v. Marsh, 755 F.2d 223, 226 (2d Cir. 1985) ([P]rimary function of . . . military chaplain is to engage in activities designed to meet the religious needs of a pluralistic military community); Bowen v. Roy, 476 U.S. 693 (1986) (considering whether the Free Exercise Clause compels the Government to accommodate a religiously-based objection to the statutory requirements that a Social Security number be provided by an applicant seeking to receive certain welfare benefits and that the States use these numbers in administering its programs); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (discussing that students were expelled from school for failing to salute the American flag; the Court held that the schools action violated the Free Exercise Clause because the students religious beliefs forbade the act of saluting a flag); Nichol v. ARIN Interm. Unit 28, 268 F. Supp.2d 536 (W.D. Pa. 2003) (holding that the school districts policy prohibiting public school employees from wearing religious dress in school displays, in purpose and effect, decided hostility toward religion, without any compelling state interests served, and [thus] violates the Free Exercise Clause of the First Amendment). 22 David M. Smolin, Exporting the First Amendment? Evangelism, Proselytism, and the International Religious Freedom Act, 31 CUMB. L. REV. 685, 706 (2001) (Religious liberty is congruent with core values of human rights, democracy, and the rule of law.).

B. Free Speech Clause The Free Speech Clause closely parallels the Free Exercise Clause. The Free Speech Clause, like the Free Exercise Clause, allows for full expression of ones beliefs, whether related to religion or not, through speech and symbols.23 Thus, other forms of speech receive the same First Amendment protection under the Free Speech Clause as religious speech under the Free Exercise clause.24 In Tinker v. Des Moines Independent Community School District, the Supreme Court held that wearing an armband for the purpose of protesting the Vietnam War was protected as free speech.25 In so finding, the Court noted that the First Amendment protects verbal and written expression, and also the wearing of an armband for the purpose of expressing certain views [a]s [a] type of symbolic act that is within the Free Speech Clause of the First Amendment.26 The Court held that the symbolic act of wearing an armband in protest could not be circumscribed where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.27 Moreover, the ban on student armbands was held as an invalid infringement upon the students rights to free speech.28 In Roberts v. Haragan,29 the court considered an infringement claim in violation of the Free Speech Clause, but

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Chalifoux, 76 F. Supp. at 664-65 (discussing the protections of the First Amendment: private, religious speech, including not only verbal and written expression, but also symbols and conduct that constitute symbolic speech). 24 See Widmar v. Vincent, 454 U.S. 263, 269 (1981) (holding that Kansas University had discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion, religious activities the Court considered to be forms of speech . . . protected under the First Amendment). 25 Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 505 (1969), abrogated by T.A. v. McSwain Union Elem. Sch., No. 1:08-cv01986-OWW-DLB, 2010 U.S. Dist. LEXIS 71973 (E.D. Cal. R. 2010). 26 Id. 27 Id. at 509. 28 Id. 29 Roberts v. Haragan, 346 F. Supp. 2d 853 (2004).

such claim was struck down.30 The plaintiff, a student at Texas Tech University Law School, wanted to pass out literature on campus in order to express his religious and political views that homosexuality is a sinful, immoral, and unhealthy lifestyle.31 The University had a designated free speech area at which students could exercise their free exercise rights without prior permission from the University.32 The plaintiff, however, desired to make his speech in another campus location that required prior permission, which the University had denied.33 The court provided analysis as to the limits that may be placed on protected speech in the public forum.34 The court held that the entire university campus is not a public forum subject to strict scrutiny.35 Thus, the court found there was no free speech violation because the university was not regulating the content of his speech, only the forum where he could exercise his free speech, which was located in the designated free speech area.36 [C]ases involving both a free exercise and free speech claim . . . are generally considered separately [with] one claim not being considered dispositive of the other.37 In a sense, the right to free exercise of religion and the right to free speech work together to ensure that religious freedom is

30 31

Id. at 873-74. Id. at 856. 32 Id. 33 Id. (The [University] did not deny [the] [p]laintiff permission to speak at the time or in the manner he chose, but only in the location he had requested.). 34 Id. at 858. 35 Id. at 860; see Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 44 (Nowhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for . . . unlimited expressive purposes.). 36 Roberts, 346 F. Supp. 2d at 873; see generally Texas v. Johnson, 491 U.S. 397, 414 (1989) (If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."). 37 Jennifer M. Westerfield, Behind the Veil: An American Legal Perspective on the European Headscarf Debate, 54 AM. J. COMP. L. 637, 669 (2006).

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protected.38 This idea is somewhat inelegantly exemplified in the hybrid rights exception set forth in Employment Division, Department of Human Resources v. Smith,39 explained in more detail in part five, herein. Employment Division specifically allows for heightened scrutiny of free exercise claims when they are accompanied by other claims of infringement of a fundamental right, like free speech.40 It is evident from each of the aforementioned cases that tensions exist between the plaintiffs rights to the free exercise of religion and freedom of speech, and how the university must resolve such.41 On one hand, the plaintiff wishes to express his religious beliefs about homosexuality, while on the other hand, the plaintiff wants to disseminate this information to his peers.42 Furthermore, the Free Exercise and Free Speech

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Id.; see Nichol, 268 F. Supp. 2d at 548 (Initially, the Court observes that government rules and regulations which implicate freedom of speech often will also implicate the Establishment and Free Exercise Clauses of the First Amendment.); see Am. Civil Liberties Union of N.J. v. Black Horse Pike Regl Bd. of Educ., 84 F.3d 1471, 1478 (3d Cir. 1996) (The First Amendment protects speech and religion using very different mechanisms. Speech is protected by insuring its full expression . . . [while] the methods for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse . . . [;] the Free Exercise clause embraces a freedom of conscience and worship that has close parallels [to] the speech provisions of the First Amendment . . . .). 39 Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 878 (1990), superceded by statute, Alcoholic Liquors; Controlled Substances; Drugs, OR. REVISED STAT. 475.840(4) (LexisNexis 2009), as recognized in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). 40 Id. 41 Snyder v. Phelps, 131 S. Ct. 1207 (2011). Members of the Westboro Baptist Church were found civilly liable under tort theories for picketing near a soldiers funeral, id. at 1213. The picket signs reflected the church's view that the United States is overly tolerant of homosexuality and that God kills American soldiers as punishment, id. at 1213. The Court, however, held that the statements on the picket signs were protected under the First Amendment, id. at 1214. Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to special protection under the First Amendment; Such speech cannot be restricted simply because it is upsetting or arouses contempt, id. at 1219. 42 See DURHAM & SCHARFFS, supra note 13, at 186 (Freedom of religion includes the freedom to practice ones religion or belief alone or together with others . . . [while] [f]reedom of speech includes the freedom to receive and disseminate information and thoughts.).

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Clauses of the First Amendment form the basis upon which college students should be allowed to engage in religiously motivated speech that is capable of achieving social change.43 C. Establishment Clause While a university burdening a students free exercise and free speech rights is a violation of both the Free Exercise and Free Speech Clauses, a universitys impermissible advancement of religion is oftentimes challenged as a violation of the First Amendments Establishment Clause.44 Generally speaking, the Establishment Clause restricts the benefits the government may grant a religion or religions.45 The purpose of the Establishment Clause is to enhance religious liberty, ensure religious equality, guarantee disentanglement of religion and government, ensure the legitimacy of the secular democratic order, and diffuse religious divisiveness.46 The Establishment Clause is more than a negative prohibition against certain narrowly defined forms of government favoritism; it also imposes affirmative obligations that may require a state, in some situations, to take steps to avoid being perceived as supporting or endorsing a private religious message.47 In Bishop v. Aronov,48 when a

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See also Jeanne M. Craddock, Comment, Constitutional Law Words that Injure; Laws that Silence: Campus Hate Speech Codes and the Threat to American Education, 22 FLA. ST. U. L. REV. 1047, 1049 (Spring 1995). 44 Thomas F. Lamacchia, Note, Reverse Accommodation of Religion, 81 GEO. L. J. 117, 119 (1992). 45 Id. at 117. 46 Green, supra note 10, at 1455; Sch. Dist. of Abington Twp., 374 U.S. at 223 (noting that the government may restrict free exercise and free speech rights if they pass the strict scrutiny test discussed in part five of this paper). 47 See generally Ark. Educ. Television Commn v. Forbes, 523 U.S. 666, 674 (1998) (noting that the Court compares broadcasters, who must choose among speakers expressing different viewpoints, to university administrators, who must select speakers for commencement or a lecture series, and public schools that prescribe their curriculum); Stone v. Graham, 449 U.S. 39, 41 (1980) (holding as unconstitutional a Kentucky statute requiring the posting of the Ten Commandments on public school walls because they do not confine themselves to arguably secular matters). 48 Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991).

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professor of exercise physiology at the University of Alabama informed his students about his personal bias that a divine creative force was behind the complexities of human physiology, his supervisor ordered him to stop interjecting his religious beliefs into the classroom, and he was found to have violated the Establishment Clause.49 The professor initially alleged only a free speech claim but later amended it to include a free exercise violation.50 The court ultimately held that there was no violation of the Establishment Clause.51 Despite the courts ruling, the university justified such an attempt, as do other institutions, to increase the separation between church and state as necessary to prevent an Establishment Clause violation.52 Furthermore, the contradictory commands of the Free Exercise, Free Speech, and Establishment Clauses often thrust colleges and universities into difficult positions when dealing with religious matters.53 IV. RELIGIOUS INTOLERANCE PLAGUES COLLEGE CAMPUSES Over the past few decades, American universities have experienced an increasingly diverse population in terms of race, gender, religious belief, sexual orientation, and other

49

Bishop, 926 F.2d at 1068-69 (noting that Professor Aronov advised his students that he relied heavily on religion to cope with the personal and academic stresses of life). 50 Id. at 1070. 51 See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (noting that the Court applied the three-prong Lemon test stating that the [S]tatute must have a secular legislative purpose; . . . [its] principal effect must be one that neither advances nor inhibits religion; . . . [and] the statute must not foster an excessive government entanglement with religion); see also Bishop, 926 F.2d at 1077 (discussing the courts holding that there was no Free Exercise Clause violation because the professors actions were considered nonreligious). 52 Lamacchia, supra note 43, at 118; see also Tex. Monthly v. Bullock, 489 U.S. 1, 5 (1989) (noting that exempting religious publications from state sales tax violates the Establishment Clause); see also Thornton v. Caldor, 472 U.S. 703, 710-11 (1985) (stating that forbidding employers from requiring employee to work on day of week that employee considers the Sabbath is a violation of the Establishment Clause). 53 Lamacchia, supra note 43, at 117.

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demographic categories.54 Students from a wide variety of backgrounds can provide a wide range of viewpoints that add to the marketplace of ideas exchanged in the university setting.55 Recently, however, many university administrators have adopted some form of campus speech codes for their schools, which are aimed at preventing the use of derogatory terms to denigrate the race, sexual orientation, gender, or religion of students attending the university.56 This section provides a sociological background discussing the extent of hostility to religious plurality in situations where students are discriminated against because of their religion or religious views by fellow students, faculty, and administration. Discrimination based on the religious status and views of students persistently occurs on public college and university campuses.57 Jewish students at several public college campuses have been the targets of a growing number of antiSemitic incidents.58 For example, an Anti-Defamation League

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Lee Ann Rabe, Case Note, Sticks and Stones: The First Amendment and Campus Speech Codes, 37 J. MARSHALL L. REV. 205, 205 (Fall 2003). 55 See e.g., Healey v. James, 408 U.S. 169, 180 (1972) (The basic premise of the marketplace of ideas model is that well-founded, well-supported arguments will ultimately prevail in campus debate, while faulty or misguided views will be unable to withstand the scrutiny and close analysis that comes with rigorous debate. Therefore, ideas will succeed or fail in reaching people solely on the basis of their merits.). 56 Rabe, supra note 53, at 205; see UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis. Sys., 774 F. Supp. 1163, 1164 (E.D. Wis. 1991) (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.); Doe v. Univ. of Mich., 721 F. Supp. 852, 853 (E.D. Mich. 1989) (University of Michigan at Ann Arbor, a state-chartered university, adopted a Policy on Discrimination and Discriminatory Harassment of Students in the University Environment in an attempt to curb what the University's governing Board of Regents viewed as a rising tide of racial intolerance and harassment on campus. The Policy prohibited individuals, under the penalty of sanctions, from stigmatizing or victimizing individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnamera veteran status.). 57 See Tsesis, supra note 5, at 622. 58 Id.; see Susan B. Tuchman, Jewish Students of America, Know Your Legal Rights, JERUSALEM POST (Dec. 11, 2005, 2:13 AM), http://www.jpost.com/Home/Article.aspx?id=7091 (We are facing a crisis on American college campuses. Anti-Semitism and vicious anti-Israel

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audit found that there were ninety-four anti-Semitic incidents on college campuses in 2007, representing about six percent of total anti-Jewish harassment and vandalism that year.59 In UWM Post, Incorporated. v. Board of Regents of the University of Wisconsin System, the Board of Regents adopted a Design for Diversity plan (Plan) to increase campus diversity throughout the University of Wisconsins (UW) twenty-six campuses and in response to incidents of discriminatory harassment.60 The Plan directed each campus of UW to prepare non-discriminatory conduct policies.61 With the help of UW Madison Law School professors, the groups developed a proposed rule62 providing, The university may discipline a student in nonacademic matters in the following situations . . . . For racist or discriminatory comments, epithets or other expressive behavior directed at an individual . . . or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally: 1. Demean[s] the race, sex, religion, color, creed,

sentiment are flourishing, and many Jewish students are feeling harassed and intimidated. The crisis must be addressed . . . . Jewish students have even been made afraid to exercise their own constitutional rights to free expression, fearing negative consequences if they sponsor programs on campus that support Israel . . . . [S]chools have a legal obligation to ensure that Jewish students are protected from harassment, intimidation and discrimination . . . . They need not, and should not, tolerate a campus environment that renders them afraid to be Jews or supporters of Israel.). 59 Tsesis, supra note 5, at 622; see Sonia Scherr, Anti-Semitism Goes to School, Hate on California, Oregon Campuses, INTELLIGENCE REPORT, 19 (Fall 2008), http://www.splcenter.org/get-informed/intelligencereport/browse-all-issues/2008/fall/anti-semitism-goes-to-school ([S]uch incidents tend to affect campus communities disproportionately, often resulting in very public controversies and bitter disputes between students.). 60 UWM Post, Inc., 774 F. Supp. at 1164. 61 Id. at 1165. 62 Id. The proposed rule was struck down as a violation of the overbreadth doctrine and for being unduly vague, id. at 1181; see also Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 676 (2d. Cir. 1995) (noting that courts, however, do recognize that colleges and universities face difficulties in crafting rules and regulations that do not run afoul of the First Amendment).

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disability, sexual orientation, national origin, ancestry or age of the individual . . . and 2. Create[s] an intimidating, hostile or demeaning environment for education . . . .63 At least nine students have been sanctioned under the UW Rule to date.64 In one instance, a student was disciplined for sending a message that stated Death to all Arabs! Die Islamic scumbags! on a university computer system.65 Furthermore, this particular hate speech code recognizes that religiously motivated speech of students is protected under the First Amendment. However, it also recognizes that where religious speech creates an intimidating or threatening message to another student, it may be validly suppressed. Thus, the balancing test is effective in that it promotes and protects the free exercise rights of students, while suppressing only religiously motivated speech that amounts to hate speech, discussed in depth in part five herein. Jewish students at the University of California, Irvine (UC-Irvine) have reported that antagonism has grown to such an extent that they travel [to] the outskirts of campus to avoid conflict, are reluctant to engage in activities sponsored by Jewish organizations, and have trouble focusing on their studies.66 In 2010, the Muslim Student Union, which UCIrvine subsequently banned, brought in a speaker who compared Jews to Nazis, and other speakers even claimed that Jews were responsible for the terror on September 11, 2001.67 Even further, swastikas were drawn on a Jewish student organizations pamphlet at the University of California, Berkeley.68 The University of Southern California (USC) has seen a considerable amount of anti-Semitic ideology on its campus as well. As Muslim Student Association (MSA) chapters have become increasingly influential at universities

63 64

UWM Post, Inc., 774 F. Supp. at 1165. Id. at 1167. 65 Id. 66 Tsesis, supra note 5, at 622. 67 Id.; see E.B. Solomont, Irvine Muslim Student Union Suspended, JERUSALEM POST (June 15, 2010), http://www.jpost.com/International/Article.aspx?id=178434. 68 Tsesis, supra note 5, at 623.

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and colleges around the country, critics have charged it as a hate group69 that expresses religious hatred toward students of the Jewish faith. Despite its claim of merely being another religious group, similar to the Hillel club for Jewish students, or the Newman Club for Catholics, MSA was ordered to remove a despicable hadith of hate calling for Muslims to murder Jews.70 While MSA continues to perpetuate its religious beliefs in saying the most hateful things imaginable about Christians and Jews,71 USCs order to remove the hadith marks the first time an American university has acknowledged that the MSAs agenda involves the promotion of ethnic hatred.72 Students also face religious discrimination from campus administration in either the form of religiously

69

Ruth Cohen, Hadith of Hate Banned at USC, FRONT PAGE MAGAZINE, (Aug. 22, 2008), http://archive.frontpagemag.com/Printable.aspx?ArtId=32117. 70 Id. (The hadith (sacred teaching) reads: The last hour would not come unless the Muslims will fight against the Jews and the Muslims would kill them until the Jews would hide themselves behind a stone or a tree and a stone or a tree would say: Muslim . . . there is a Jew behind me; come and kill him . . . .). 71 Tsesis, supra note 5, at 644; see Tazeen Ahmad, Shame of Britains Muslim Schools: Secret Filming Shows Pupils being Beaten and Taught Hindus Drink Cow P***, ASSOCIATED NEWSPAPERS LTD., Feb. 13, 2011, http://www.dailymail.co.uk/news/article-1356361/ShameBritains-Muslim-schools-Secret-filming-shows-pupils-beaten.html (discussing that one of Britains most influential Islamic faith schools, Danul Uloom Islamic High School in Birmingham, is required to teach tolerance and respect for other faiths. A secret filming inside the school, however, discovered that Muslim children were being taught religious apartheid and social segregation. The religious persecution of nonMuslims infests this school on a routine basis along with ritual beatings to instill these values of religious hatred. Students were being taught that non-Muslims are evil, non-Muslims were referred to as the Kuffar, and as disbelievers (or Atheists) who are the worst creatures, and that Hindus have no intellect and drink cow piss. One mother, Salma, eventually withdrew her children upon discovering they were being taught this intolerant version of Islam. Thus, one can easily imagine how such an environment breeds the youth who will one day attend institutions of higher education and discriminate against students of different faiths because of the intolerant teachings instilled in them at a young age). 72 Cohen, supra note 68 (discussing the negative impact of those who hijack speech and religious freedoms and the goodwill of the campus community in order to spread hate and extremist violence).

17

motivated hate speech or the denial of certain campus privileges and opportunities generally available for other students.73 A registered religious group named Cornerstone at the University of Missouri at Kansas City (UMKC) had regularly sought and received permission to conduct its meetings in University facilities since 1973; but yet in 1977, the University informed Cornerstone that it could no longer meet in University buildings.74 The exclusion was based on a regulation, adopted in 1972, prohibiting the use of University buildings or grounds for purposes of religious worship or religious teaching.75 Similar to UMKCs ban on a religious group using its facilities, Rosenberg v. Rector & Visitors of the University of Virginia addressed a public universitys refusal to fund the printing costs of a religious magazine publication.76 Before a University of Virginia student group is eligible to submit bills for payment by the Student Activities Fund (SAF), it must become a Contracted Independent Organization (CIO) and

73

See Sahin v. Turkey, Application. No. 44774/98, Eur. Court Human Right, 14 (2005), http://www.echr.coe.int/echr (click Case-Law, choose Decisions and judgments, then select HUDOC Database, then click HUDOC, search the case name in the Text box, and click the second search result). (discussing that the Islamic headscarf is at the heart of a debate raging across many European and United States universities. In Sahin, the European Court of Human Rights addressed the right of a young woman to wear the Islamic headscarf in a Turkish university. While enrolled as a medical student at Istanbul University, Leyla Sahin, a practicing Muslim, wore the Islamic headscarf on campus because she considered it a religious duty proscribed by her faith and as a symbol of her faith. Soon after her enrollment, administration issued a notice barring student who wore Islamic headscarves from lectures, courses, and tutorials. Sahin continued to wear her headscarf, was suspended from the university, and ultimately chose to enroll at another university where her headscarf was permitted. Under U.S. jurisprudence, the universitys prohibition of Sahins Islamic headscarf on campus is a violation of her free exercise rights because she was not allowed the right to practice her religion in wearing her headscarf). 74 Widmar, 454 U.S. at 265. 75 See generally id. at 265-71 (stating that the University argued that it could not offer its facilities to religious groups and speakers on the terms available to other groups without violating the Establishment Clause of the First Amendment). 76 Rosenberg v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995).

18

meet the guidelines of the SAF.77 However, the magazine funding request of CIO-certified, religious student group, Wide Awake Productions (WAP), was excluded from SAF support because of its religious status as an activity that primarily promotes or manifests a particular belief in or about a deity or an ultimate reality.78 Because colleges and universities have a duty to protect their students from harm, university hate speech codes oftentimes must limit some religiously motivated speech where it threatens students safety. Nevertheless, religiously motivated speech that does not truly threaten other students is protected and promoted. Another controversial issue surrounding religion is the different beliefs towards homosexuality. Gay student activists oftentimes face much ridicule from other students and faculty with differing religious viewpoints.79 For the most part, however, institutions of higher learning expressly disapprove traditional religious attitudes towards homosexuality, while religious rights group appeal to allow the voicing of traditional religious views of homosexuality.80 For example, on the campus of William Paterson University, students viewed a film about a homosexual relationship.81 Daniel, a student, privately replied to an unsolicited email about the film requesting that he not be sent any mail about Connie and Sally and Adam and Steve.82 He then described the

77 78

Id. at 823-24. See generally id. at 825-27 (describing WAP as a magazine of religious expression offering a Christian perspective on student issues; each page of the magazine is marked by a cross and most of its advertisers are Christian church-affiliates). 79 Cf. George W. Dent, Jr. Civil Rights for Whom?: Gay Rights Versus Religious Freedom, 95 KY. L.J. 553, 595 (2007) (No terrain is more eagerly sought by gay activists than public schools and universities.). 80 Id. at 595-96 (One university department issued a policy statement that [i]t is not acceptable . . . to view homosexual people as perverse or as sinners.). 81 Foundation for Individual Rights in Education (FIRE), William Paterson University Tramples Students Constitutional Rights, July 20, 2005, http://www.thefire.org/index.php/article/6119.html (last visited Feb. 27, 2011). 82 Id.

19

relationships as perversions and stated how the absence of God in higher education brings about confusion.83 More recently, in Christian Legal Society v. Martinez, the Supreme Court affirmed an opinion by the Ninth Circuit Court of Appeals, upholding a decision by University of California Hastings College of the Law (Hastings) to deny recognition to the Christian Legal Society (CLS) as a Registered Student Organization (RSO)84 because of its intolerance to accept students of different religious beliefs. Through its RSO program, Hastings extends official recognition to student groups.85 Several benefits attach to this school-approved status such as access to various means of communication to students through the schools system, use of the schools name and logo, and financial assistance from the school.86 In exchange for these benefits, RSOs must abide by certain conditions, specifically compliance with Hastings Policies and Regulations Applying to College Activities, Organizations, and Students which includes the schools Policy on Nondiscrimination.87 The Nondiscrimination Policy binds RSOs not to unlawfully discriminate on the basis of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation.88 Hastings essentially interprets this as an accept-all-comers policy.89 In 2004, CLS became the first prospective student group to seek an exemption from this policy.90 CLS must adopt bylaws of the national Christian Legal Society that, among other things, require members and officers to sign a Statement of Faith and to conduct their lives in accord with prescribed principles.91 One of the tenets is the belief that sexual activity should not occur outside of a marriage between a man and a woman; thus, persons who engage in unrepentant homosexual conduct are

83

Id.; see also Roberts, 346 F. Supp. 2d at 856 (describing students religious belief that homosexuality is sinful and immoral). 84 Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2995 (2010). 85 Id. at 2979.
86 87

Id. Id. 88 Id. 89 Martinez, 130 S.Ct. at 2979. 90 Id. at 2980. 91 Id.

20

excluded from CLS.92 CLS also excludes students who hold religious convictions different from those in the Statement of Faith.93 The Court views Hastings justifications for denying the exemption and RSO status to CLS as credible and reasonable.94 First, the accept-all-comers policy ensures that leadership, educational, and social opportunities afforded by RSOs are available to all students,95 and that all students are provided with Equal Protection96 of the laws. Additionally, the law school reasonably adheres to the view that an accept-all-comers policy, to the extent it brings together individuals with diverse backgrounds and beliefs, encourages cooperation, learning among students and religious tolerance.97 Because sexuality is so deeply rooted in many religious faiths, Martinez, demonstrates the need for university hate speech codes to eliminate discrimination based on a students sexual orientation and to protect and promote the religious free exercise rights of all students despite ones sexual orientation. V. UTLILITY OF UNIVERSITY HATE SPEECH CODES A. Students Free Exercise Rights Protected In response to expressions of religious hatred, public university and college administrators have taken an increasingly prominent approach to protect the free exercise (and free speech) rights of targeted students as guaranteed

92 93

Id. Id. at n.3 (Trusting in Jesus Christ as my Savoir, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit. God the Father Almighty, Maker of heaven and earth. The Deity of our Lord, Jesus Christ, Gods only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return. The presence and power of the Holy Spirit in the work of regeneration. The Bible as the inspired Word of God.). 94 Id. at 2976. 95 Id. at 2989. 96 U.S. CONST. amend. XIV, 1. (The Equal Protection Clause guarantees that similarly situated classes of persons will be treated alike.) 97 Martinez, 130 S.Ct. at 2990.

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under the First Amendment by enacting hate speech codes.98 Some students, however, look unfavorably upon hate speech codes because they view them as restrictions on their ability to engage in religiously motivated speech, which is also guaranteed under the First Amendment.99 However, university hate speech codes do not violate the Free Exercise clause. Courts generally used the long-standing compelling interest test in adjudicating free exercise claims.100 In Sherbet v. Verner, a Seventh-Day Adventist was discharged from her job for refusing to work on Saturdays which is the Sabbath day of her faith.101 The state denied the plaintiff unemployment compensation and defended its decision as necessary to prevent fraudulent claims by workers who might object to Saturdays without any rational reason.102 The Court held that the risk of fraudulent claims was not a compelling interest, and there were alternative means to prevent this risk.103 However, in 1990, the Supreme Court overturned this test and replaced it with a standard that merely prohibits intentional discrimination against religion.104 In Smith, the plaintiffs were members of the Native American Church.105 Because members of the Native American Church use peyote as part of a traditional religious ceremony, many state and federal governments grant an exemption from criminal

98

Tsesis, supra note 5, at 625; accord Jon B. Gould, Look Whos (Not) Talking: The Real Triumph of Hate Speech Regulation, 8 Green Bag 2d 367, 368 Summer 2005 (discussing the rise of hate speech policies). 99 Craddock, supra note 42, at 1048 (stating that hate speech advocates attempted goal of achieving equality for traditionally subordinated groups conflicts with the First Amendment). 100 Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) (discussing that under this test, a burden on free exercise was justified when it was necessary to achieve a compelling government interest accomplished by narrowly tailored means; this is the recognized standard of strict scrutiny); see also Dunn v. Blumstein, 405 U.S. 330 (1972) (court uses compelling interest test in alleged Equal Protection violation). 101 Sherbert, 374 U.S. at 399. 102 Id. at 401, 407. 103 Id. at 407-09. 104 Employment Div., Dept of Human Res. v. Smith, 494 U.S. at 882-89. 105 Id. at 874.

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charges for the religious use of peyote.106 The plaintiffs, however, were employed at a drug rehabilitation center in Oregon that criminalized peyote use with no religious exception.107 The plaintiffs employment was terminated for using peyote during a Native American Church religious ceremony and they were denied unemployment compensation.108 The Court held that a person must abide by a law even though it incidentally forbids (or requires) an act that ones religion requires (or forbids) as long as the intended purpose of that law was not to prevent the persons free exercise.109 Moreover, ones religious beliefs cannot absolve him or her of the obligation of complying with a neutral law that does not intentionally discriminate against religion.110 Although Oregon no longer criminalizes the religious use of peyote,111 the intentional discrimination test that Smith posits allows for public university hate speech codes to survive potential free exercise claims because the majority of the codes do not intend to prevent the free exercise rights of students. For example, the well-known Historically Black College and University (HBCU) and public institution, Florida Agricultural and Mechanical University sets forth several protections for its students in its Student Handbook. Under the Handbooks Student Rights and Responsibilities section, it states the following: All students enrolled at the University shall be accorded the basic rights as set forth below . . . . [t]he right of freedom of expression.112 In addition, this section provides the following on non-discrimination: It is

106

See, e.g., 21 C.F.R. 1307.31 (2011) (allowing federal exemption from food and drug rehabilitation of peyote use by members of Native American Church); Food, Drugs, Alcohol, and Hazardous Substances, TEX. HEALTH & SAFETY CODE ANN. 481.111 (LexisNexis 2010) (allowing for exemption of peyote use by members of Native American Church in Texas). 107 Smith, 494 U.S. at 876. 108 Id. at 874. 109 Id. at 878. 110 Id. at 879. 111 Alcoholic Liquors; Controlled Substances; Drugs, OR. REVISED STAT. 475.840(4) (LexisNexis 2009). 112 DUE PROCESS, OTHER RIGHTS & RESPONSIBILITIES, Regulation 2.013, in Provisions of Florida A&Ms Student Handbook, The Fang, 60 (2008-2010), http://www.famu.edu/Students/NEWFANG%2020082010X.pdf.

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the policy of [FAMU] to assure that each member of the University community be permitted to work or attend classes in an environment free from discrimination including race, religion, color, age, disability, sex, marital status, national origin, veteran status and sexual harassment as prohibited by state and federal statuses.113 The implicit vision under the FAMU policy is to promote the religious exercise of its students and to not infringe upon that right. Under the intentional discrimination standard of Smith, FAMUs nondiscrimination policy passes this test because it bears no explicit or implicit showing of intentional discrimination. Smith guarantees that the right to be free from intentional religious discrimination is absolute.114 This nondiscrimination policy, like many others implemented by public colleges and universities, provides that absolute right. To further advance the protection of students free exercise rights, university hate speech codes are needed because there is no explicit federal governmental protection of those rights for students attending public institutions of higher education.115 For example, the perennial question at the heart of a Jewish communal effort is to get the United States Department of Education (Department) more deeply involved in probing allegations of anti-Semitism on public college campuses.116 Several national Jewish organizations argue that the Departments Office of Civil Rights (OCR) has adopted a policy that fails to protect students of the Jewish faith from anti-Semitic harassment on college campuses.117 The Department claims that it lacks jurisdiction over allegations based on religious discrimination, but can hear

113

POLICY STATEMENT ON NON-DISCRIMINATION, in Provisions of Florida A&Ms University Student Handbook, The Fang, 62 (2008-2010), http://www.famu.edu/Students/NEWFANG%202008-2010X.pdf. 114 Lamacchia, supra note 43, at 126. 115 See Kenneth L. Marcus, Privileging and Protecting Schoolhouse Religion, 37 J. L. & EDU. 505, 505 (Oct. 2008). But see 20 U.S.C.S. 4071(a) (LexisNexis 2011) (It shall be unlawful for any public secondary school which receives Federal financial assistance . . . to discriminate against any students . . . on the basis of their [religion].). 116 The Forward and Josh Nathan-Kazis, Can the U.S. government officially protect Jewish students?, HAARETZ NEWSPAPER IN ISRAEL (Apr. 20, 2010, 12:51 PM), http://www.haaretz.com/jewish-world/news/can-theu-s-government-officially-protect-jewish-students-1.284534. 117 Id.

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claims based on race, color or national origination discrimination.118 Congress has, however, enacted statutes that do bar discrimination of students on other grounds. Title 20 of the United State Code Service (U.S.C.S.) outlines regulations on education and provides, No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .119 Title 42 states that No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.120 Title 42 also prohibits discrimination against individuals based on age121 and disability.122 While Congress has enacted statutes that bar discrimination on the basis of age, race, national origin, color, disability, and even membership in certain patriotic youth activities,123 Congress has never acted to prohibit religious discrimination of students in federally assisted programs and activities such as public colleges and universities.124 As a

118 119

42 U.S.C.S. 2000d (LexisNexis 2011). Id. at 1681(a). 120 Id. at 2000d. 121 Id. at 6101. 122 Id. at 12131. 123 20 U.S.C.S. 7905(b) (LexisNexis 2011). 124 See, e.g., Marcus, supra note 114, at 507; see generally Craddock, supra note 42, at 130 (stating that hate speech advocates look to Title VII of the Civil Rights Act for First Amendment protection because just as offensive speech creates a hostile workplace environment for employees, it also creates a hostile learning environment for students subject to hate speech); see also 42 U.S.C.S. 2000e-2 (LexisNexis 2011) (It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such . . . religion . . . ; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's religion . . . .); 29 C.F.R. 1604.11 (LexisNexis 2011) (Harassment on the basis of [religion] is a violation of section 703 of Title VII.).

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result, the federal administrative civil rights apparatus lacks jurisdiction to investigate religious discrimination claims in the public schools for cases involving student-on-student harassment, teacher-on-student harassment, and disparate treatment of religious minority students in discipline cases.125 Thus, in various contexts, it has been left up to the courts and individual schools to prohibit religious discrimination against students and student groups.126 These selective efforts to privilege certain forms of religious expressions, however, have masked a broader failure to protect the free exercise rights of students.127 Because of Congress failure to prohibit religious discrimination statutorily with appropriate enforcement mechanisms in education, university hate speech codes essentially protect students free exercise rights. Similar to the Accept-All-Comers policy in Christian Legal Society v. Martinez, university hate speech codes implicitly hint at that same message in allowing for students to feel free to exercise their religious rights without discrimination from others on campus. Public colleges and universities can justify the constitutionality of and need for hate speech codes based on several reasons. First, these codes do not infringe upon the free exercise rights of students because they do not intentionally discriminate against religion under the Smith standard. Secondly, they do not have a coercive effect on students free exercise rights.128 Furthermore, theses codes offer a form of protection for students free exercise that the federal government does not.

125 126

Marcus, supra note 114. Id. at 506; see also Widmar v. Vincent, 454 U.S. at 277 (holding that a public university which allows political student-run groups to use campus facilities for their meetings could not deny equal access to a Christian student group); Rosenberg, 515 U.S. at 845 (holding that public university refusal to fund printing costs of religious magazine publication violates the First Amendment). 127 Marcus, supra note 114, at 506. 128 Sch. Dist. Of Abington Twp., 374 U.S. at 223 ([V]iolation of the Free Exercise clause is predicated on coercion . . . .).

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B. Free Exercise is not Absolute The Protection of Students Prevails While university hate speech codes protect students free exercise rights, they also, paradoxically, are used to prevent the dissemination of menacing religious-based stereotypes, symbols, and statements that deter students from enjoying the intellectual life of a public university or college.129 The opponents of hate speech codes, however, argue that their enforcement contravenes the American commitment to the preservation of religiously motivated speech.130 Nevertheless, public colleges and universities can limit religious hate speech that aims to stifle conversation by putting members of the campus community in fear for their well-being.131 The Tenth Amendment of the United States Constitution132 supports the need and justification for public colleges and universities using hate speech codes to limit religiously motivated hate speech of students. The Tenth Amendment provides that, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.133 This essentially allows for state-funded, public post-secondary schools to exercise their police powers in ensuring that the health, safety, and welfare of students are protected. Additionally, in Bourgault v. Yudoff, the Supreme Court noted that a school need not tolerate speech inconsistent

129 130

Tsesis, supra note 5, at 621. Id. at 619; accord Larry Alexander, Banning Hate Speech and the Sticks and Stones Defense, 13 CONST. COMMENT. 71, 73 (Spring 1996); David E. Bernstein, Defending the First Amendment from Antidiscrimination Laws, 82, N.C. L. REV. 223, 240-41 (2003) (stating that censorship would nullify the First Amendment and have totalitarian implications); Erwin Chemerinsky, Unpleasant Hate Speech, Even Hate Speech, is a First Amendment Issue, 17 WM. & MARY BILL RTS. J., 765, 770 (2009) ([P]ublic universities cannot prohibit the expression of hate, including anti-Semitism, without running afoul of [established First Amendment principles].). 131 Tsesis, supra note 5, at 621. 132 U.S. CONST. amend. X. 133 Id.

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with its basic educational mission.134 Moreover, although the Equal Access Act (Act) is applicable only to public secondary schools, it certainly does provide a basis for public post-secondary institutions implementation of university hate speech codes. The Equal Access Act states, Nothing in this title shall be construed to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure the attendance of students at meetings is voluntary.135 Thus, because schools use hate speech codes to protect and promote the free exercise rights of students, students who wish to discriminate against other students religious views can be rightfully silenced when it poses risks to targeted students and when it does not further the mission of the university. While opponents of hate speech codes claim that hate speech is constitutionally protected,136 Supreme Court decisions have established classes of hate speech that are not afforded First Amendment constitutional protection. In Schenck v. United States, during World War I, the defendants, members of the Socialist Party, willfully conspired to have printed and circulated to men who had been called and accepted for military service, a document calculated to cause such insubordination and obstruction.137 The Supreme Court affirmed the conviction of the defendants and recognized that freedom of expression can be suppressed when the message poses a clear and present danger of achieving some substantive evil the government has a right to prevent.138 The clear and present danger test of Schenck is furthered developed in Frohwerk v. United States, where the Court upheld a ten-year prison sentence against a Germanborn newspaper editor for attempting to cause disloyalty, mutiny and refusal of duty in the military and naval forces of the United States during World War I.139 Writing for the

134

Bourgault v. Yudof, No. 3:04-CV-0098-H, 2004 U.S. Dist. LEXIS 24310 (N.D. Dist. Tex. 2004). 135 20 U.S.C.S. 4071(f) (LEXIS 2012). 136 R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) (holding that a municipal ordinance against cross burning was unconstitutional). 137 Schenck v. United States, 294 U.S. 47, 49 (1919) 138 Id. at 52. 139 Frohwerk v. United States, 249 U.S. 204, 205-06, 210.

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majority, Justice Oliver Wendell Holmes recognized that the First Amendment was not intended to give immunity for every use of language.140 Thus, these precedents established that the government may prohibit speech if the content and context tends to cause a clear a present danger that will likely trigger serious illegal acts.141 In the context of preventing religious hate speech of students on college and university campuses, these decisions recognize that religious speech is not an absolute right for individuals under the First Amendment.142 Religiously motivated hate speech that amounts to a clear and present danger to students may manifest in different forms outside the boundaries of First Amendment constitutional protection.143 Although students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, public schools may restrict student speech that intrudes upon . . . the rights of other students or collides with the rights of other students to be secure and to

140

Id. at 206; see also Tsesis, supra note 5, at 626-27 ([W]here language instigates violence or threatens violence, it can be regulated without violating the speakers First Amendment rights. The reason for this leeway in the regulation of dangerous speech is that it does not further the underlying rationale for free speech. Intimidation is neither a step toward truth nor related to democratic self-governance.). 141 Tsesis, supra note 5, at 627. 142 Neb. Press Assn v. Stuart, 427 U.S. 539, 570 (1976) (stating that the Court has frequently denied that First Amendment rights are absolute); Whitney v. Cal., 274 U.S. 357, 373 (1927) (Brandeis, J., concurring) ([A]lthough the rights of free speech are fundamental, they are not in their nature absolute.), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969). 143 Chaplinsky v. N.H., 315 U.S. 568, 571-72 (1942) (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.), superseded by statute, Code of Ala. 13A-11-8 (LexisNexis 2011), as recognized in Fallin v. City of Huntsville, 865 So. 2d 473 (Ala. Crim. App. 2003); see id. at 572 (stating that the State may punish words that inflict injury or tend to incite an immediate breach of peace); Cohen v. Cal., 403 U.S. 15, 20 (1971) (stating that fighting wordspersonally abusive epithetsare generally proscribable under the First Amendment); Brandenburg, 395 at 447 (stating that the State permitted the forbiddence of [speech] when directed to incite or produce imminent lawless action).

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be let alone.144 True threats and harassment against an individual based on his or her religious beliefs or practices, for example, festers unresolved hatred and physical harm, both of which are not protected under the First Amendment.145 The Supreme Courts decision in Virginia v. Black146 recognizes a states power to criminalize intentional cross burning which amounts to unprotected hate speech.147 Black considered whether the Commonwealth of Virginias statute banning cross burning with an intent to intimidate a person or group of persons violates the First Amendment from the facts of three consolidated cases.148 The Respondents, Black, Elliott, and OMara were convicted of violating a Virginia cross-burning statute which provided that, It shall be unlawful for any person . . . with the intent of intimidating . . . to burn . . . a cross on the property of another . . . . Any such burning of a cross shall be prima facie

144

Tinker, 393 U.S. at 506, 508, abrogated by T.A. v. McSwain Union Elem. Sch., No. 1:08-cv-01986-OWW-DLB, 2010 U.S. Dist. LEXIS 71973 (E.D. Cal. R. 2010); see also Blackwell v. Issaquena County Bd. of Educ., 363 F.2d 749 (5th Cir. 1966) (discussing that speech giving rise to physical conduct may be restricted when speakers accost other students); Student Safety, Control, and Discipline, 3-9 Education Law 9.04[4][c][iv] (MB), 2010 (threatening or harassing speech and speech that causes psychological injury may be restricted); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 374 (three-day suspension upheld where student threatened to shoot staff member); Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 677, 683 (1986) (noting that student was disciplined for making an explicit sexual metaphor; the court held that it is a highly appropriate function of [the] public school education [system[ to prohibit the use of vulgar, [lewd, indecent,] and [plainly] offensive terms in public discourse). Although these line of cases involve incidents at primary and secondary public schools, these rationales should serve as persuasive authority in assessing the constitutionality of hate speech codes limiting students free exercise rights in some instances. 145 See Watts v. United States, 394 U.S. 705, 707-08 (1969) (suggesting that willfully threatening the President may amount to unprotected expression); R.A.V., 505 U.S. at 388 (Threats of violence are outside the First Amendment.). 146 Virginia v. Black, 538 U.S. 343 (2003). 147 See also In re Stevens S., 25 Cal. App. 4th 598, 607 (Cal. Ct. App. 1994) (describes cross burning as an immediate infliction of injury by subjecting victim to fear and intimidation; conveys a threat of future physical harm). 148 Black, 538 U.S. at 347, 351.

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evidence of intent to intimidate . . . .149 At Blacks trial, the jury was instructed that, intent to intimidate means the motivation to intentionally put a person . . . in fear of bodily harm. Such fear must arise from the willful conduct of the accused rather than from some mere temperamental timidity of the victim.150 The Virginia Supreme Court declared the statute as unconstitutional.151 Three justices, however, dissented, concluding that the Virginia statute passes constitutional muster because it proscribes only conduct that constitutes a true threat.152 The dissenters also disagreed with the majoritys analysis of the prima facie provision because considering how burning crosses in the United States is inextricably intertwined with the history of the Ku Klux Klan, the inference of an intent to intimidate from cross burning is clearly sufficient.153 The United States Supreme Court disagreed with the Virginia Supreme Court and held the statute as constitutional.154 This Court distinguished these cases from R.A.V. v. City of St. Paul, Minnesota because in the latter, the cross burning statue was struck down because it discriminated on the basis of content by targeting only individuals who provoke violence on the basis of race, color, creed, religion, or gender, notwithstanding the Courts reasoning that some forms of content discrimination do not violate the First Amendment.155 The Virginia statute, however, prohibited cross burning regardless of whether the intent to intimidate was based on any specific disfavored subject.156 Based on the aforementioned case precedents, hate speech codes give a cause of action to students offended by religious hate speech, which is in line with First Amendment requirements.157 When one students free exercise rights intrudes upon another students religious exercise or causes

149 150

VA. Code ANN. 18.2-423 (LexisNexis 2010). Black, 538 U.S. at 349. 151 Id. at 351. 152 Id. 153 Id. at 352. 154 Id. at 361. 155 Black, 538 U.S. at 349. 156 Id. at 362. 157 Smolin, supra note 21, at 697.

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physic physical injury158 to that other student, it is the universitys duty to protect the interests of the targeted student against religious discrimination.159 Many opponents, nonetheless, often attack university hate speech codes as being vague, overbroad, and discriminatory based on content and viewpoint.160 In earlier discussions, however, where religiously motivated hate speech threatens a group and seeks to incite others to act against an identifiable target, a university speech code can punish it.161 Even the contentbased regulation of speech that is drafted with enough generality not to discriminate against particular viewpoints can be a permissive use of government power when162 the evil to be restricted so overwhelmingly outweighs the expressive interests.163 For example, Section III of The College of William & Marys Student Code of Conduct seeks to guide students toward the development of personal responsibility, respect for others, and mature behavior.164 It

158 159

Id. See generally Tsesis, supra note 5, at 644 (The new doctrine on hate speech provides state universities clear parameters for developing hate speech policies that punish the depiction of hateful symbolic speech with a culpable frame of mind.). 160 See Azhar Majeed, Defying the Constitution the Rise, Persistence, and Prevalence of Campus Speech Codes, 7 & GEO. L. J & PUB. POLY 481,494 (Summer 2009) (Speech codes prevent several doctrinal problems under the First Amendment, most fundamentally over breadth, vagueness, and content-based and viewpoint-based discrimination.); accord Rabe, supra note 53, at 206; see also Doe v. Univ. of Mich., 721 F. Supp. at 864 ([L]aw regulating speech is overbroad if it sweeps within its ambit a substantial amount of protected speech along with that which it many legitimately regulate.); Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (statute or regulation is void for vagueness when men of common intelligence must necessarily guess at its meaning); R.A.V., 505 U.S. at 382 (stating that speech codes impermissibly discriminating on the basis of content or viewpoint are presumptively invalid). 161 Tsesis, supra note 5, at 631. 162 Id. at 632. 163 New York v. Ferber, 458 U.S. 747, 763-64 (1982) ([I]t is not rare that a content-based classification of speech has been accepted [as constitutional] because it may be appropriately generalized within the confines of the given classification . . . .). 164 Student Code of Conduct, Section III, in COLLEGE OF WILLIAM & MARY STUDENT HANDBOOK (2010-2011), http://www.wm.edu/offices/deanofstudents/services/studentconduct/studen

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outlines several forms of misconduct affecting persons which is subject to disciplinary sanction such as: Causing physical harm, threatening harm to any person, or behaving in a manner that a reasonable person would find alarming or intimidating; Behaving in a manner that endangers the health or safety of another person . . . ; Engaging in conduct that infringes on the rights of others; or Disrupting the normal living and working environment of . . . the College community.165 Much like cross-burnings being used as a tool of intimidation in Black,166 other tools of religious intimidation are used in the same manner on public college campuses. Just as the burning of a cross is a symbol of hate [speech],167 students engage in many forms of religiously motivated hate speech that constitute true threats. University hate speech codes limit only religious speech where the student speakers motivation is to intentionally put a person in fear of bodily harm.168 From William & Marys Student Code of Conduct, public college administrators would need to assess each alleged incident of religious discrimination on a case-by-case basis in deciding whether the religious speech should be suppressed (and punished) or not. Based on Black, the colleges restriction of religious hate speech is constitutional, so long as the fear created arises from the willful conduct of the accused rather than from mere temperamental timidity of the victim.169 VI. CONCLUSION Furthermore, the First Amendment guarantees the rights to free exercise, free speech, and to be free from any established religion. However, those rights are not absolute and may be restricted in certain instances. Public institutions of higher learning owe a duty to its students to protect their health, safety, and well-being. When students religious

thandbook/student_code_ of_conduct/iii_student_code_of_conduct/index.php. 165 Id. 166 Black, 538 U.S. at 354. 167 Id. at 357. 168 Id. at 349. 169 Id.

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views are targeted, their safety, well-being, and free exercise rights are put at risk. University hate speech codes balance the interests of the targeted student with the student speakers religious exercise rights. On many occasions, these codes are needed to prevent disorder brought about by religious hate speech.170 Thus, university hate speech codes promote and protect the free exercise right of students, but that right may be limited to protect students who are subjected to religious derogation and made to feel inferior based upon their religious beliefs.

170

Justin T. Peterson, Comment, School Authority v. Students First Amendment Rights: Is Subjectivity Strangling the Free Mind at its Source, 2005 MICH. ST. L. REV. 931, 952 (Fall 2005).