Messages targeting racial minorities and transgender individuals were chalked on Grounds in the early hours of April 18, raising questions about First Amendment rights and free speech on college campuses.
The messages included statements such as “Confused about your gender? Look down your pants,” and messages explaining the wealth gap through alleged average IQ differences between white and black people.
Public responses
The Queer Student Union and the Black Student Alliance responded by chalking positive messages around Grounds such as “Love is love” and “We don’t stand for bigotry “ — several of which were defaced by having water poured on them to change their meaning.
Pat Lampkin, vice president and chief student affairs officer, Dean of Students Allen Groves and Maurice Apprey, dean of the Office of African-American Affairs, issued a joint release April 18 condemning the initial chalkings.
“The statements can only be characterized as racist and transphobic,” the statement read. “We affirm our values as a community based on trust, mutual respect and diversity in its membership.”
The statement was posted on the Office of the Dean of Students and Vice President and Chief Student Affairs Officer’s websites, but was not emailed to the University community.
“As with an incident of concern last December, we decided to post this VPSA/ODOS statement on our web page,” Groves said in an email statement. “That will also allow it to remain active and accessible to the public online throughout the academic year.”
In December, University President Teresa Sullivan and University Provost Thomas Katsouleas issued a statement in response to an incident at the Lighting of the Lawn in which several college-aged males shouted an anti-LGBTQ slur during the singing of the Good Ol’ Song.
The University’s official chalking policy — which was last updated in March 2011 — specifies where chalking may occur but does not make mention of content regulations.
According to the policy, non-permanent sidewalk chalk may be used on exposed, exterior concrete and only one message is allowed per sidewalk area.
“Posted materials which are not in compliance with these regulations will be removed by Facilities Management or other University officials without regard to content,” the policy reads.
A national context
Offensive chalkings have sprung up at universities across the country. A similar incident occurred at the University of Michigan at Ann Arbor in late March when anti-Islamic messages such as “#stopISLAM” were chalked on the university's campus. Students responded by washing the messages away and calling the university's police.
University of Michigan President Mark Schlissel responded in a statement condemning the incident, according to The Michigan Daily.
“Attacks directed toward any individual or group within our community, based on a belief or characteristic, are inconsistent with the university’s values of respect, civility and equality,“ Schlissel said.
Another incident occurred at the University of California San Diego two weeks ago, when someone chalked “Build the wall,” “Deport them all” and “Mexico will pay,” prompting student protest over the anti-immigrant messages.
UCSD released a statement noting that the values displayed through the chalkings are inconsistent with the school’s values.
First Amendment regulations
John Whitehead, president of the Rutherford Institute, said the University is not required to permit chalking because it has control over its own property. However, once chalking is permitted, it cannot prohibit certain messages “on Grounds that discriminate against particular viewpoints.”
“[The University] would be very limited in the content restrictions it could put into place,” Whitehead said. “The restriction would have to be necessary to serve a compelling interest.”
Ari Cohn, a representative from the Foundation for Individual Rights in Education, said the University administration “may not punish students for chalking simply because they disliked the message written.”
Chalking would only infringe on an individual’s rights if it contains speech not protected by the First Amendment, Cohn said. Free speech that is not afforded constitutional protection includes defamation, true threats and intimidation, all of which are “narrowly defined” by the Supreme Court.
Colleges and universities may also prohibit law-defined discriminatory harassment, Cohn said.
However, Cohn said messages about the wage gap or gender identity, which were the primary focuses of some of the chalk messages on Grounds, are not harassment “merely because some are offended by them.”
Both Cohn and Whitehead said any speech that incites violence would also not be protected by the First Amendment.
“The First Amendment also permits restricting speech that constitutes unlawful incitement, that is, speech that is intended and likely to cause imminent lawless action,” Cohn said in an email statement. “No such concerns are present with respect to the chalking.”
Cohn said an investigation by the University would prove difficult in the face of the First Amendment.
“Any investigation that the University conducts on the basis of the viewpoints expressed would run headlong into the First Amendment,” Cohn said. “As any college or university that has been on the losing side of that battle will likely tell you, the hassle and embarrassment simply are not worth it.”
Cohn suggested instead that the University “[use] its own voice to rebuff the chalked messages,” an action that has already been taken by University officials in the recent statement from Lampkin, Groves and Apprey.
Cohn also said he thinks it would be much more beneficial for the University to use its resources to support students affected by the messages.
While many of the QSU’s and BSA’s responses urged students to make the University a “safe space,” Cohn iterated that “there is no right to be in an environment entirely free of offense.” If this were the case, Cohn said, many important social and political issues would not be able to be discussed on Grounds.
However, student organizations’ responses to the original chalking fall directly in line with Cohn’s own suggestion to counter offensive speech with better speech.
“The solution to ‘bad’ speech, as FIRE always says, is to put ‘better’ speech into the marketplace of ideas and convince others that you are in the right,” Cohn said.
As a public institution, the University cannot take disciplinary action against an individual who engages in speech that, while offensive to many, is constitutionally protected, Groves said.
“In each instance, we would need to evaluate whether the speech at issue was non-protected — and thus actionable — harassment targeting one or individuals, or whether it was offensive yet protected speech,” Groves said. “However, as in this case, we remain free to publicly state our disagreement with offensive speech, even if protected.”
Groves also said he contacted the leadership of the BSA and the QSU to offer support to the students who felt targeted or impacted by the initial chalk messages and that students are also free to contact ODOS directly for support.
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