IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University

• Decision Date: 10 May 1993
• Docket Number: No. 91-2684,91-2684
• Citation: 993 F.2d 386
• Parties: , 83 Ed. Law Rep. 43 IOTA XI CHAPTER OF SIGMA CHI FRATERNITY; John Howlin; John Singsank, Plaintiffs-Appellees, v. GEORGE MASON UNIVERSITY; Kenneth E. Bumgarner, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 386

993 F.2d 386

61 USLW 2702, 83 Ed. Law Rep. 43

IOTA XI CHAPTER OF SIGMA CHI FRATERNITY; John Howlin; John

Singsank, Plaintiffs-Appellees, v. GEORGE MASON UNIVERSITY; Kenneth E. Bumgarner, Defendants-Appellants.

No. 91-2684.

United States Court of Appeals,

Fourth Circuit.

Argued May 4, 1992.

Decided May 10, 1993.

Paul Joseph Forch, Sr. Asst. Atty. Gen., Richmond, VA, argued (Mary Sue Terry, Atty. Gen., H. Lane Kneedler, Chief Deputy Atty. Gen., R. Claire Guthrie, Deputy Atty. Gen., Martha M. Parrish, Asst. Atty. Gen., on brief), for defendants-appellants.

Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, argued, Jeanne Goldberg, Victor M. Glasberg & Associates, Alexandria, VA, Michael P. McDonald, Center for Individual Rights, Washington, DC, Stephen B. Pershing, ACLU of Virginia, Richmond, VA, for plaintiffs-appellees.

Before WIDENER and MURNAGHAN, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

SPROUSE, Senior Circuit Judge:

George Mason University appeals from a summary judgment granted by the district court to the IOTA XI Chapter of Sigma Chi Fraternity ¹ in its action for declaratory judgment and an injunction seeking to nullify sanctions imposed on it by the University because it conducted an "ugly woman contest" with racist and sexist overtones. We affirm.

I

Sigma Chi has for two years held an annual "Derby Days" event, planned and conducted both as entertainment and as a source of funds for donations to charity. The "ugly woman contest," held on April 4, 1991, was one of the "Derby Days" events. The Fraternity staged the contest in the cafeteria of the student union. As part of the contest, eighteen Fraternity members were assigned to one of six sorority teams cooperating in the events. The involved Fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman. He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman's breasts and buttocks. He spoke in slang to parody African-Americans.

There is no direct evidence in the record concerning the subjective intent of the Fraternity members who conducted the contest. The Fraternity, which later apologized to the University officials for the presentation, conceded during the litigation that the contest was sophomoric and offensive.

Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. Two hundred forty-seven students, many of them members of the foreign or minority student body, executed a petition, which stated: "[W]e are condemning the racist and sexist implications of this event in which male members dressed as women. One man in particular wore a black face, portraying a negative stereotype of black women."

On April 10, 1991, the Dean for Student Services, Kenneth Bumgarner, discussed the situation with representatives of the objecting students. That same day, Dean Bumgarner met with student representatives of Sigma Chi, including the planners of and participants in the "ugly woman contest." He then held a meeting with members of the student government and other student leaders. In this meeting, it was agreed that Sigma Chi's behavior had created a hostile learning environment for women and blacks, incompatible with the University's mission.

The Dean met again with Fraternity representatives on April 18, and the following day advised its officers of the sanctions imposed. They included suspension from all activities for the rest of the 1991 spring semester and a two-year prohibition on all social activities except pre-approved pledging events and pre-approved philanthropic events with an educational purpose directly related to gender discrimination and cultural diversity. The University's sanctions also required Sigma Chi to plan and implement an educational program addressing cultural differences, diversity, and the concerns of women. A few weeks later, the University made minor modifications to the sanctions, allowing Sigma Chi to engage in selected social activities with the University's advance approval.

On June 5, 1991, Sigma Chi brought this action under 42 U.S.C. § 1983 ² against the University and Dean Bumgarner. It requested declaratory judgment and injunctive relief to nullify the sanctions as violative of the First and Fourteenth Amendments. Sigma Chi moved for summary judgment on its First Amendment claims on June 28, 1991, filing with its motions numerous affidavits explaining the nature of the "ugly woman contest." Also submitted were large glossy photographs of the participants as they appeared in the skits, including photographs of the Fraternity member depicting the offensive caricature of the black woman.

In addition to the affidavit of Dean Bumgarner explaining his meetings with student leaders, the University submitted the affidavits of other officials, including that of University President George W. Johnson and Vice-President Earl G. Ingram. President Johnson, by his affidavit, presented the "mission statement" of the University:

(3) George Mason University is committed to promoting a culturally and racially diverse student body.... Education here is not limited to the classroom.

(4) We are committed to teaching the values of equal opportunity and equal treatment, respect for diversity, and individual dignity.

(5) Our mission also includes achieving the goals set forth in our affirmative action plan, a plan incorporating affirmative steps designed to attract and retain minorities to this campus.

....

(7) George Mason University is a state institution of higher education and a recipient of federal funds.

Vice President Earl G. Ingram's affidavit represented:

(6) The University's affirmative action plan is a part of an overall state plan designed, in part, to desegregate the predominately "white" and "black" public institutions of higher education in Virginia.... The behavior of the members of Sigma Chi that led to this lawsuit was completely antithetical to the University's mission, as expressed through its affirmative action statement and other pertinent University policies, to create a non-threatening, culturally diverse learning environment for students of all races and backgrounds, and of both sexes.

(7) While the University has progressed in attracting and retaining minority students, it cannot expect to maintain the position it has achieved, and make further progress on affirmative action and minority issues that it wishes to make, if behavior like that of Sigma Chi is perpetuated on this campus.

The district court granted summary judgment to Sigma Chi on its First Amendment claim, 773 F.Supp. 792 (E.D.Va.1991).

II

The University urges that the district court's grant of summary judgment was premature. It stresses that there remain factual issues which the district court should have weighed in its conclusion. According to the University, the Fraternity's intent in staging the contest is crucial to the issue of whether its conduct was expressive. The University also stresses that if given time it could demonstrate more completely the harm the contest caused to its educational mission. It is, of course, beyond cavil that summary judgment should not be granted while a viable issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment principles require the court to find that the evidence is such that a jury could not reasonably find for the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of a suit under the applicable law preclude entry of summary judgment.

In our view, for the reasons that follow, the district court was correct in concluding that there was no outstanding issue of material fact.

III

We initially face the task of deciding whether Sigma Chi's "ugly woman contest" is sufficiently expressive to entitle it to First Amendment protection. From the mature advantage of looking back, it is obvious that the performance, apart from its charitable fund-raising features, was an exercise of teenage campus excess. With a longer and sobering perspective brought on by both peer and official disapproval, even the governing members of the Fraternity recognized as much. The answer to the question of whether the First Amendment protects the Fraternity's crude attempt at entertainment, however, is all the more difficult because of its obvious sophomoric nature.

A

First Amendment principles governing live entertainment are relatively clear: short of obscenity, it is generally protected. See, e.g., Barnes v. Glen Theatre, Inc., --- U.S. ----, ----, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (nude dancing); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.Ct. 1239, 1245-47, 43 L.Ed.2d 448 (1975) (musical "Hair"); Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir.1985) (blackface performance), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986). As the Supreme Court announced in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), "[e]ntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment ... fall within the First Amendment guarantee." Id. at 65, 101 S.Ct. at 2180. Expression devoid of "ideas" but with entertainment value may also be protected because "[t]he line between the informing and the entertaining is too elusive." Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948).

Thus, we must determine if the skit performed by Sigma Chi comes within the constitutionally protected rubric of entertainment....