First Amendment The Real Victim In ‘Taco Tuesday’ Sorority Flap

Peter Bonilla Director, FIRE's Individual Rights Defense Program
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Anyone who’s watched Animal House knows that theme parties on college campuses aren’t a new thing. Newer, however, is the trend of condemning any such parties that carry the faintest whiff of cultural insensitivity or stereotyping and seeking punishment for their organizers. Often lost amidst the clamor for punishment is the plain fact that the expression conveyed by these types of parties is thoroughly protected under the First Amendment.

The Alpha Delta Pi (ADPi) sorority at California State University, Fullerton (CSUF) in northern Orange County is merely the latest victim of this complex. Recently, ADPi held a “Taco Tuesday”-themed recruitment event for prospective sisters. The campus newspaper noted that many of the sorority’s members wore “sarapes, sombreros and in some cases, gang costumes,” even though the sorority’s leaders did not suggest they do so.

Things took a predictable course from there. Student complaints reached the CSUF administration, and the university launched an investigation. Eventually, CSUF’s dean of students declared the sorority guilty of no fewer than seven conduct violations, a productive day at the office but for one thing: Every single violation claimed by the university is entirely, 100 percent wrong, and unconstitutional to boot. In a recent letter sent to CSUF, the Foundation for Individual Rights in Education (FIRE, where I work) has demanded that this utterly meritless case against the sorority be dropped.

Some of CSUF’s claims are simply laughable — for instance, that the party was a “[w]illful, material and substantial disruption or obstruction” of university activities and an “obstruction of the free flow of pedestrian or other traffic.” I haven’t heard any reports of sombrero-sporting sorority girls wreaking havoc in the streets of Fullerton. Not that CSUF has alleged any such thing. In fact, CSUF has been very clear that the disciplinary charges are based solely on the offense caused by the partygoers’ attire. It cannot be true that CSUF’s students are so easily shaken that an offensive theme party grinds the entire place to a halt.

Then there are the more pernicious charges, like the claims that the party constituted “[d]isorderly, lewd, [indecent], or obscene behavior” or “[c]onduct that threaten[s] or endangers the health or safety” of other CSUF students. The latter of these includes conduct such as “physical abuse,” “harassment,” “intimidation,” and “threats.” These charges hold water only if you divorce the terms entirely from their legal meanings, as CSUF clearly did.

Student-on-student harassment, for example, has been defined by the Supreme Court as conduct that is “so severe, pervasive, and objectively offensive” as to effectively deny other students’ equal access to an institution’s educational opportunities and benefits. The Supreme Court has defined “true threats,” meanwhile, as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” And lewdness and obscenity? Please. If you can buy Hustler magazine at the nearest 7-Eleven, you can wear a sombrero to a college party without facing an Inquisition-style hearing by your dean.

That the speech in question is so obviously protected makes the sanctions forced on ADPi all the more insulting. In addition to probation through the end of 2015, ADPi is required to coordinate a workshop on “cultural competency and diversity” for its members and a “we are a culture not a costume” campaign to showcase to the entire university. These presentations must be developed with and approved by the university, presumably so that it can make sure the sorority has the “right” ideas on vague and debatable concepts like cultural competency.

CSUF clearly has no problem forcing the sorority to genuflect at the altar of cultural sensitivity as a condition of remaining on campus. In doing so, it proudly puts itself on the wrong side of perhaps the most ringing endorsement of freedom of conscience issued by the Supreme Court, which eloquently held in West Virginia State Board of Education v. Barnette (1943): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

I’d have the entire CSUF administration read the Barnette opinion to give them a lesson in the importance of respecting the private consciences of others. But I’d have them read something more basic first: the First Amendment.

Peter Bonilla is Director of FIRE’s Individual Rights Defense Program.