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

774 F. Supp. 1163

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.

No. 90-C-328.

United States District Court, E.D. Wisconsin.

October 11, 1991.

Jeffrey J. Kassel, Brady C. Williamson, LaFollette & Sinykin, Madison, Wis., for plaintiffs.

Nadim Sahar, Asst. Atty. Gen., Milwaukee, Wis., for defendant.

ORDER

WARREN, Senior District Judge.

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.

I. BACKGROUND

A. DEVELOPMENT OF THE UW RULE

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.

B. THE UW RULE

The UW Rule provides:

UWS 17.06 Offenses defined. The university may discipline a student in non-academic matters in the following situations.

. . . . .

(2)(a) For racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally:

1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and

2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.

(b) Whether the intent required under par. (a) is present shall be determined by consideration of all relevant circumstances.

(c) In order to illustrate the types of conduct which this subsection is designed to cover, the following examples are set forth. These examples are not meant to illustrate the only situations or types of conduct intended to be covered.

1. A student would be in violation if:

a. He or she intentionally made demeaning remarks to an individual based on that person's ethnicity, such as name calling, racial slurs, or "jokes"; and

b. His or her purpose in uttering the remarks was to make the educational environment hostile for the person to whom the demeaning remark was addressed.

2. A student would be in violation if:

a. He or she intentionally placed visual or written material demeaning the race or sex of an individual in that person's university living quarters or work area; and

b. His or her purpose was to make the educational environment hostile for the person in whose quarters or work area the material was placed.

3. A student would be in violation if he or she seriously damaged or destroyed private property of any member of the university community or guest because of that person's race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age.

4. A student would not be in violation if, during a class discussion, he or she expressed a derogatory opinion concerning a racial or ethnic group. There is no violation, since the student's remark was addressed to the class as a whole, not to a specific individual. Moreover, on the facts as stated, there seems no evidence that the student's purpose was to create a hostile environment.

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:

(1) Be racist or discriminatory;

(2) Be directed at an individual;

(3) Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual addressed; and

(4) Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.

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:

Question 1. In a class discussion concerning women in the workplace, a male student states his belief that women are by nature better equipped to be mothers than executives, and thus should not be employed in upper level management positions. Is this statement actionable under proposed UWS 17.06(2)?

Answer: No. The statement is an expression of opinion, contains no epithets, is not directed to a particular individual, and does not, standing alone, evince the requisite intent to demean or create a hostile environment.

Question 2. A student living in the University dormitory continually calls a black student living on his floor "nigger" whenever they pass in the hallway. May the university take action against the name-caller?

Answer: Yes. The word "nigger" is an epithet, and is directed specifically at an individual. Its use and continuous repetition demonstrate the required intent on the part of the speaker to demean the individual and create a hostile living environment for him.

Question 3. Two university students become involved in an altercation at an off-campus bar. During the fight one student used a racial epithet to prolong the dispute. May the university invoke a disciplinary action?

Answer: Perhaps. Use of the epithet, and its direction to an individual suggests a potential violation of proposed s. UWS 17.06(2); however, because the episode occurred off campus, the intent to create a hostile environment for university-authorized activities would be difficult to demonstrate. Additional facts would have to be developed if disciplinary action were to be pursued.

Question 4. A group of students disrupts a university class shouting discriminating epithets. Are they subject to disciplinary action under the provisions related to regulation of expressive behavior?

Answer: Perhaps. It is clear that the students are subject to disciplinary action for disrupting a class under existing s. UWS 17.06(1)(c)3. The question is whether they also violated the newly created provision concerning expressive behavior, because they shouted epithets while in the course of other misconduct. If the epithets were directed to individuals within class, and were intending to demean them and create an intimidating environment, then the behavior might also be in violation of the provision concerning expressive misconduct.

Question 5. A faculty member, in a genetics class discussion, suggests that certain racial groups seem to be genetically pre-disposed to alcoholism. Is this

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