UWM Post v. Board of Regents of U. of Wis.
Decision Date | 11 October 1991 |
Docket Number | No. 90-C-328.,90-C-328. |
Citation | 774 F. Supp. 1163 |
Parties | The UWM POST, INCORPORATED, Lafi Abdalla, Stephanie Bloomingdale, Kent Farnsworth, Theresa Flynn, Richard D. Leonard, Michael J. Mathias, Marcia Meyer, Ron Novy, Robin Pharo, Carrie Worthen and John Doe, Plaintiffs, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant. |
Court | U.S. District Court — Eastern District of Wisconsin |
Jeffrey J. Kassel, Brady C. Williamson, LaFollette & Sinykin, Madison, Wis., for plaintiffs.
Nadim Sahar, Asst. Atty. Gen., Milwaukee, Wis., for defendant.
On March 29, 1990, the UWM Post, Inc. and others ("plaintiffs") filed this action seeking that this Court enter a declaratory judgment that Wis.Admin.Code § UWS 17.06(2) (the "UW Rule") on its face violates: (1) plaintiffs' right of free speech guaranteed by the First Amendment to the United States Constitution and by Article I, Section 3 of the Wisconsin Constitution and (2) plaintiffs' right to due process and equal protection of the laws guaranteed by the Fourteenth Amendment and by Article I, Section 1 of the Wisconsin Constitution. In addition, plaintiffs request that this Court: (1) enter a permanent injunction prohibiting the Board of Regents of the University of Wisconsin System (the "Board of Regents" or the "Board") and its agents and employees from enforcing the UW Rule; (2) order the Board of Regents to vacate the disciplinary action taken against plaintiff John Doe under the UW Rule and expunge from his files all records related to that action and (3) award plaintiffs their reasonable attorneys' fees and costs pursuant to 42 U.S.C. § 1988.
Now before Court are the parties' cross motions for summary judgment.
In May of 1988, the Board of Regents adopted "Design for Diversity," a plan to increase minority representation, multi-cultural understanding and greater diversity throughout the University of Wisconsin System's 26 campuses. Design for Diversity responded to concerns over an increase in incidents of discriminatory harassment.1 For example, several highly publicized incidents involving fraternities occurred at the University of Wisconsin — Madison. In May of 1987, a fraternity erected a large caricature of a black Fiji Islander at a party theme. Later that year, there was a fight with racial overtones between members of two fraternities. In October of 1988, a fraternity held a "slave auction" at which pledges in black face performed skits parroting black entertainers. See the Capitol Times, Nov. 17, 1988, p. 25.
Design for Diversity directed each of the UW System's institutions to prepare non-discriminatory conduct policies. In addition, pursuant to the plan, the Board of Regents approved its "Policy and Guidelines on Racist and Discriminatory Conduct," which stated the Board's general policy against discrimination and provided guidance to the individual campuses in developing their own non-discrimination policies. Finally, the Board established a working group to draft amendments to the student conduct code, Chapter UWS 17, to implement its policy system-wide.2 With the help of UW-Madison Law School Professors Gordon Baldwin, Richard Delgado and Ted Finman, the group developed a proposed rule based, in part, on a policy being developed simultaneously at the UW-Madison. The professors agreed that the proposed rule would likely withstand attack on First Amendment grounds if it included a requirement that the speaker intended to make the educational environment hostile for the individual being addressed.
At its April 7, 1989 meeting, the Board of Regents discussed issuing the proposed rule on an emergency basis in light of the increasing number of incidents of racial and discriminatory harassment. By a 8 to 7 vote, the Board decided not to promulgate the rule on an emergency basis. Instead, the Board advanced the proposal through the regular administrative rule-making procedure. On June 8, 1989, the Board held a public hearing to provide an opportunity for interested persons to comment on the proposed rule. On June 9, 1989, the Board adopted the UW Rule by 12 to 5 vote.
The UW Rule provides:
Wis.Admin.Code § UWS 17.06(2).
Thus, in order to be regulated under the UW Rule, a comment, epithet or other expressive behavior must:
In addition to the rule, the UW System issued and circulated to its students and faculty a brochure which explains the rule and provides guidance as to its scope and application. See Discriminatory Harassment: Prohibited Conduct Under Chapter UWS 17 Revisions. This guide provides some illustrations of situations where the UW Rule applies and does not apply:
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