It is not a First Amendment issue, and not just because this is a private school, although that helps the school. As others have pointed out, the First Amendment clearly states that
Virtually all states have a similar clause in their state constitutions, which would be more applicable to a state school anyway, since the school was established by the state and generally the state still has a say in its operations. Generally speaking, it doesn’t mean you can say what you want without consequences. But those consequences cannot include incarceration, except in limited cases such as terroristic threats or inciting violence (falsely shouting “fire” in a crowded theater). So even in a government job, you can’t stand up on a desk and spew Nazi propaganda or call your boss a horses behind and expect to keep your job. You have the right to say it, but there is a potential price to pay. But this is a private school, so what are the issues?
Generally it comes down to the handbook, the rules the school has outlined under which students are agreeing to abide by enrolling there. To be enforceable, they cannot violate state law (so the handbook cannot say that in order to go here you have to allow professors to slap you when you get an answer wrong), and they have to be understandable and practicable to the reasonable person. That’s a judgement. The rules that have been cited could easily be declared too vague to apply to this situation. Is this really what they intended to punish?
But is this racism? Doesn’t any person have the right to find people attractive or not attractive for any reason they choose? Racism, at least from a legal standpoint, is not renting an apartment to someone because they are of another race. Or not giving them a job, or equal pay. Or physically hurting them because they are of another race, and hence the hate enhancement to assault and other criminal statutes. But really, we are now going to mind control what people are allowed to have for personal taste? We are going to make them date other races, or make them say they are attractive because we want to hear it? I know this will come as a shock to many of you but it is not illegal to hate another race. It is illegal to act on that hatred in many ways, but not in a lot of matters of personal choice.
No, you say, we just don’t want them to say it “out loud”, in whatever form. That is a very dangerous road. There is no end to it. So I am sitting in an art class and we are looking at Reubens and I say “I don’t understand why people find these paintings so great when all the women are fat. I thought art was supposed to be about beauty”. Ignorant? Sure, but should I be expelled from school because all the overweight women got offended by my comment? Where does it end? Those kind of personal value judgements, which I apply only to myself and have no effect on anyone else, unless you consider my not wanting to date or find attractive certain types of people an “effect”, cannot become the fodder for this kind of penalty and punishment. I am having trouble finding any difference between this and the Puritanical strictures of the early days of this country. Think like us in the most personal ways or you are a pariah and banished.
Colleges do not have carte blanche to prohibit speech, even when the college is private. They have to show that it was intended to disrupt the campus or should have been reasonably anticipated to. I am not sure that a judge would agree that hurt feelings because a person finds your race unattractive rises to that standard.
Let me be perfectly clear. I don’t feel at all the way this student does and I would never even remotely think like some of the examples I used above. I should also make clear that this is based on that one comment only. If they find that he actually posted some of those other statements, those fall outside of the boundaries I have outlined. But he says he didn’t post them, and apparently they have not proven he did. So assuming it is this one posting, to me it falls into the category of “I will defend to the death his right to say it and not be punished by the school” kind of category. If students want to ostracize him, by all means. I would. But I think the school goes wayyyyy too far, and is really very dangerous to the exchange of ideas as we have known and enjoyed it in this country for a long time. We are potentially creating a climate where nothing meaningful will get said about anything, because there is always a constituency to get offended about it and misconstrue it. Again, hurt feelings don’t count. This kind of thing is not creating a hostile atmosphere, it is one person’s opinion. A stupid opinion, but one he should always have the right to express if he wants. This move by the college is absurd, and I hope he hands them their lunch.
