Iota Xi Chapter of Sigma Chi v. George Mason Univ., Civ. A. No. 91-785-A.

• Decision Date: 27 August 1991
• Docket Number: Civ. A. No. 91-785-A.
• Citation: 773 F. Supp. 792
• Court: U.S. District Court — Eastern District of Virginia
• Parties: IOTA XI CHAPTER OF SIGMA CHI FRATERNITY, John Howlin, President, and John Singsank, Past President, Plaintiffs, v. GEORGE MASON UNIVERSITY and Kenneth Bumgarner, Dean, Defendants.

773 F. Supp. 792

IOTA XI CHAPTER OF SIGMA CHI FRATERNITY, John Howlin, President, and John Singsank, Past President, Plaintiffs, v. GEORGE MASON UNIVERSITY and Kenneth Bumgarner, Dean, Defendants.

Civ. A. No. 91-785-A.

United States District Court, E.D. Virginia, Alexandria Division.

August 27, 1991.

Victor M. Glasberg, Victor M. Glasberg & Assoc., Alexandria, Va., for plaintiffs.

Paul Joseph Forch, Sr. Asst. Atty. Gen., Richmond, Va., for defendants.

MEMORANDUM OPINION

HILTON, District Judge.

This matter comes before the court on plaintiffs' motion for summary judgment and defendants' motion to dismiss. In this action, the plaintiffs seek declaratory and injunctive relief for George Mason University's imposition of discipline on the plaintiff fraternity which has allegedly abridged the plaintiffs' right of free speech. Plaintiffs argue that the discipline imposed upon them unconstitutionally punishes expression protected by the First Amendment Defendants contend that the plaintiffs' conduct was not protected speech and that if protected speech, George Mason University has compelling educational interests at stake which justify the discipline imposed on plaintiffs.

This action arises under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and may give declaratory relief pursuant to 28 U.S.C. § 2201. The plaintiffs in this action are the Iota Xi Chapter of Sigma Chi Fraternity which is at George Mason University (GMU) and two members of the fraternity, the president and the immediate past president of the chapter. Defendant GMU is a public university maintained and funded in significant part by the Commonwealth of Virginia which was acting as an educational institution at all relevant times. Defendant Dean Bumgarner is the associate vice president and dean of student services at GMU who was acting on behalf of GMU at all relevant times.

For the past two years, a week long event known as Derby Days has been held at GMU by the Iota Xi chapter of Sigma Chi. Derby Days is a major social event for the chapter and is held to raise money for charity. One event during Derby Days has traditionally been the "Dress A Sig" contest in which members of the fraternity dress as caricatures of "ugly women".

During the week of March 11, 1991, Dominic Lapus, an Iota Xi chapter member acting as co-chair of the 1991 Derby Days program, submitted the printed Derby Days program for approval to Kathryn Schilling, GMU's assistant director of student organizations and programs. The program listed the following as one event: "Dress a SIG contest (dress coaches like ugly women.)". As in former years, university approval was sought. Ms. Schilling approved the Derby Days program on behalf of the university, after requiring numerous changes to be made in the proposed program. She required no changes whatsoever to be made relative to the proposed "ugly woman" contest.

The "Dress A Sig" event took place on April 4, 1991 in the cafeteria of the student union building on the campus of GMU. In that event, one of the participants dressed in black face, used pillows to represent breasts and buttocks and wore a black wig with curlers. One week later, several GMU student leaders signed a letter to Dean Bumgarner requesting the imposition of sanctions on the Iota Xi chapter of Sigma Chi as the "Dress A Sig" contest had offended them because it perpetuated racial and sexual stereotypes. On April 19, 1991 Dean Bumgarner announced the proposed discipline and clarified that discipline in a letter on May 1, 1991. The discipline imposed by Dean Bumgarner and GMU prevents the plaintiffs from holding social and sports activities for a two year probationary period and, during that same period, requires the chapter to submit other planned activities to the university for advance approval.

Plaintiffs and defendants agree that the First Amendment claims are ripe for summary judgment. As there are no material facts in dispute on the First Amendment claims, it is proper to resolve this issue on summary judgment.

One of the fundamental rights secured by the First Amendment is that of free, uncensored expression, even on matters some may think are trivial, vulgar or profane. Berger v. Battaglia, 779 F.2d 992, 1000 (4th Cir.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986). Because that fundamental right extends to students at a state university, a state university may not hinder the exercise of First Amendment rights simply because it feels that exposure to a given group's ideas may be somehow harmful to certain students. Gay Alliance of Students v. Matthews, 544 F.2d 162, 166 (4th Cir.1976); Healy v. James, 408 U.S. 169, 187-88, 92 S.Ct. 2338, 2349-50, 33 L.Ed.2d 266 (1972).

Plaintiffs assert that the discipline imposed by GMU unconstitutionally punishes expression protected by the First Amendment. Defendants, however, argue that the behavior of the plaintiffs at the "Dress A Sig" contest was not expressive and therefore, not protected speech. Defendants contend that only political and social speech are protected by the First Amendment and that this conduct is neither. However, the Supreme Court has held that activity such as nude dancing and performance in black face are protected expression under the First Amendment. Barnes v. Glen Theatre, Inc., ___ U.S. ___, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Berger v. Battaglia, 779 F.2d 992 (4th Cir.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720 (1986).

In Barnes v. Glen Theatre, Inc., ___ U.S. ___, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), Indiana enforced a public indecency law which prevented the respondent establishments from providing totally nude dancing as entertainment. Although nude dancing was protected by the First Amendment, the Court held that the Indiana public indecency law was permissible. The Court found that the Indiana law sought to regulate conduct, specifically public nudity, and not an expressive message. 111 S.Ct. at 2463. The Court noted that "`It is possible to find some kernel of expression in almost every activity a person undertakes ... but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.'" Id. at 2462 (quoting Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989)).

In this case, however, GMU did not seek to regulate any conduct whatsoever. It was not the conduct of renting the auditorium, holding Derby Days, raising money for charity, providing entertainment, or performing a skit which prompted GMU to discipline the members of Sigma Chi. To the contrary, it was the expressive message conveyed by the skit which was perceived as offensive by several student groups which prompted GMU to discipline the fraternity. This skit contained more than a kernel of expression; therefore, the activity demands First Amendment protection.

Even if the activity is protected, the defendants contend that any infringement on the First Amendment rights of the Sigma Chi fraternity...