Freedom Limited


That'll show 'em.

The Associated Press reported Tuesday

Southern Mississippi has revoked the scholarships of five members of its pep band who took part in the heckling of a Kansas State basketball player at last Thursday’s NCAA men’s basketball tournament game.

The school announced Tuesday that the five students also were removed from the band and will be required to complete a two-hour cultural sensitivity training course this week.

The students have not been identified.

Southern Miss issued an apology last week to Kansas State point guard Angel Rodriguez after he was the target of chants of “Where’s your green card?” during the Wildcats’ 70-64 second-round victory in the NCAA tournament. Rodriguez had 13 points and four assists in the game that was played in Pittsburgh.

Video of the chanting went viral after being posted on YouTube that same day.

Rodriguez said he heard the chants and USM’s athletic director and personnel from the school came to the team hotel to apologize.

Comment is perilous when information about an issue is fairly sketchy, and the university's website itself provides even fewer details about the incident and the university's response than does the AP.      We do not know the terms of the scholarships the students were granted.    Nor do we know know under what circumstances, as the vice-president of student affairs put it, "The students have been forthcoming, cooperative, contrite and sincerely remorseful. They acted rashly and inappropriately, and now see the gravity of their words and actions."     They may have been threatened with an even more severe penalty if they were not so "forthcoming, cooperative, contrite, and sincerely remorseful" or were lured with the promise (implicit or explicit) of a reduction in penalty if they expressed the proper penitent attitude.     Nonetheless, the students apparently did not deny, obstruct, or "lawyer up;" and for this they were hit with a severe penalty.    Message sent and received.

Regrettably, the legal options for the five students, who uttered a bigoted and ignorant (Rodriguez is from Puerto Rico, hence a U.S. citizen at birth, not from Mexico) remark, appear limited.     Samantha Harris of the Foundation for Individual Rights in Education , seems to believe, with the limited information thus far available, that imposition of a counseling requirement by a public university probably runs afoul of the First Amendment.     However, she suggests, a challenge to the revocation of the scholarships of students in their capacity as members of a pep band (the far more serious punishment in this instance), would be much more difficult.    She explains

University sports teams and bands are not independent from the university in the way that student organizations (like a chess club or the College Republicans) are. As a result, universities do have more leeway to regulate those organizations, including conditioning membership upon adherence to certain standards of behavior. Indeed, the U.S. Supreme Court has held that "[b]y choosing to ‘go out for the team,' [students] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally... students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges." Vernonia School District 47J v. Acton, 515 U.S. 646, 657 (1995). So if the students' chant violated the band's standards of conduct, then the dismissal of those students from the band (and the attendant revocation of their band scholarships) may be appropriate. 

However, it appears as if the university is also imposing discipline on the students purely in their capacity as students, by requiring them to attend cultural sensitivity training even though they are no longer members of the band and have had their band scholarships revoked. This raises free speech concerns, because although the speech may have violated the band's conduct regulations, it is clearly protected by the First Amendment. Of course, USM is a public university, bound to uphold its students' First Amendment rights, and it cannot punish students purely in their student capacity for engaging in protected speech. If the training were required as a condition of reinstatement to the band or continuation of the scholarship, that might be a different story, but from reports so far it seems as if it is a wholly separate penalty.

While this is not a criminal matter, the concern of Jonathan Turley, law professor at the extraordinary George Washington University, that "Western countries are on a slippery slope where more and more speech is cited by citizens as insulting and thus criminal," is applicable to speech codes at universities.        Turley recognizes the emergence of "a struggle being waged on different terms.   Where governments once punished to achieve obedience, they now punish to achieve tolerance."         The University of Southern Mississippi, a public institution with government funding, has penalized students for what is, primarily, not behavior, but objectionable and offensive speech reflecting intolerance.     The University likely is, as Harris argues, unconstrained by the First Amendment to afford the right of free expression to the pep band five.

There are not, to borrow phrasing from Hillary Clinton's dubious claim, 18 million cracks in the principle of free expression on college campuses.   But there is, now, one more.



Next up (tomorrow):     The Mississippi Immigrants Rights Alliances responds.

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