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4th Flashback: Bad Costume Sanctions Violate Free Speech Rights

By Robyn Hagan Cain on October 27, 2011 | Last updated on March 21, 2019

In honor of Halloween, we’re looking back at a Fourth Circuit Court of Appeals cautionary tale involving college students and bad costume choices.

Packs of college kids can make bad decisions; especially when costume parties are involved.

One of the fraternities at our school was banned from campus for a year after one of its pledges dressed as a slave, complete with blackface, for its Halloween party. The party is still remembered as the event that left a one-year hangover.

Were the chapter and the student protected by free speech rights? Sure. But we have it on good authority that the administration told the members that they could go quietly, or the school would use other dirt - we suspect evidence of alcohol at on-campus parties - to permanently ban the chapter.

Blackmail, readers, is how you run an efficient Greek system.

George Mason University (GMU), however, did not resort to blackmail in this 1993 case involving the Iota Xi Chapter of Sigma Chi Fraternity.

If you went to a school with an active Greek system, you may recall that most Sigma Chi chapters host "Derby Days," an annual competition between sororities to raise funds for charity. In 1991, the GMU Sigma Chi chapter included an ill-advised "Ugly Woman Contest" among its Derby Day events.

The fraternity staged the contest in the cafeteria of the student union. As part of the contest, 18 fraternity members were divided among 6 sorority teams cooperating in the events. The involved members appeared in a skit dressed as caricatures of different types of women, including one member dressed as an offensive caricature of an African American woman.

Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. GMU found Sigma Chi's behavior had created a hostile learning environment for women and African Americans, incompatible with the University's mission, and imposed sanctions on the chapter.

The Sigma Chis, who had apologized for their poor judgment, protested the sanctions with a civil rights lawsuit, claiming that the University's actions violated the members' free speech rights. The district court granted Sigma Chi's motion for summary judgment.

On appeal, the Fourth Circuit Court of Appeals examined whether the Ugly Woman Contest fell within the constitutionally protected rubric of entertainment. The court found that free speech rights extended to the fraternity's Ugly Woman Contest, and subsequent skit, because they were inherently expressive forms of entertainment.

The court further found that the skit qualified as expressive conduct under the test articulated in Texas v. Johnson.

Halloween is a tough time for school officials because there are so many opportunities for bad judgment. The Fourth Circuit Court of Appeals is a college-rich jurisdiction; if you represent a university, remind administrators that costume sanctions can violate free speech rights, and potentially result in a civil rights lawsuit.

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