The University of Connecticut violated two students’ free-speech rights by attempting to expel them from college housing for allegedly using a racial slur, a new lawsuit says, raising the question of whether a university has the authority to punish offensive speech on its campus.
The students, Ryan Mucaj and Jarred Karal, both seniors, were arrested in October 2019 after the campus police tracked them down following the online posting of a video that allegedly shows the pair shouting a racial slur in a parking lot. They were charged with ridicule on account of creed, religion, color, denomination, nationality, or race, according to the Hartford Courant.
The lawsuit doesn’t dispute that the students used the slur, but says the university’s attempt to terminate the students’ housing agreement after their arrest is unconstitutional. The suit comes amid growing debates over free speech on college campuses and as public universities have struggled to balance the traditional academic value of tolerance with the First Amendment rights of students, faculty members, and protesters.
Some free-speech experts say UConn is overstepping its authority in punishing the students. Adam Steinbaugh, a First Amendment lawyer and an official at the Foundation for Individual Rights in Education, a free-speech group known as FIRE, said the slur is protected under the First Amendment.
“There’s a common misconception that there is a hate-speech exception to the First Amendment,” Steinbaugh said. “The First Amendment protects even the most deeply offensive speech, including racially offensive speech.”
While the slur wasn’t directed at anyone in particular, its impact was still felt across UConn. The Daily Campus, a student newspaper at UConn, reported that students had protested and demanded that the university take action beyond simply arresting Mucaj and Karal.
“The environment at this school is too forgiving of incidents like this. The arrest of the students is definitely a step in the right direction,” Giuliana Marchetti, a junior, told The Daily Campus last year. “Students who commit this kind of offense will notice that nothing is happening, so they’ll think they can get away with it.”
‘Unconstitutionally Overbroad’
Michelle Deutchman, executive director of the University of California’s National Center for Free Speech and Civic Engagement, added that such incidents put colleges in a difficult position.
“It’s a really hard line for schools because there’s a lot of things that schools can do, and I think should do, to create a respectful and welcoming environment, but they cannot punish students for engaging in constitutionally protected speech,” Deutchman said.
The First Amendment protects speakers of slurs, Steinbaugh said, with limited exceptions. Court rulings on the amendment have spelled out a few “very narrow, well-worn categories,” including true threats, fighting words, and incitement, he said.
Mucaj and Karal were walking through an open area while saying the slur, the video allegedly shows, but weren’t directing it at anyone in particular. Given that context, their speech is protected by the First Amendment, Steinbaugh said. Mucaj and Karal’s lawyer did not immediately respond to a request for comment.
A UConn official said the university does not comment on active litigation.
This isn’t UConn’s first battle over free speech. In the late 1980s the university expelled a student from its residence and dining halls after she allegedly hung a poster on her dorm-room door that listed “homos” in a “shot on sight” category. The student sued, and in a 1990 settlement the university agreed to remove language from its code of student conduct that banned “making personal slurs or epithets based on race,” among other things.
UConn also agreed it would not enforce “any other policy that interferes with the exercise of First Amendment rights by the plaintiff or any other student, when the exercise of such rights is unaccompanied by violence or the imminent threat of violence,” according to the Mucaj and Karal lawsuit.
The university is attempting to punish Karal and Mucaj under a section of the code of conduct on disruptive behavior, which the lawsuit describes as “unconstitutionally overbroad.”
Steinbaugh said public universities across the country have similar policies, but not all opt to use them as UConn did. Those institutions must have some ability to restrict speech, he acknowledged: If a student were to disrupt a class or official activity with a slur, the institution would have more leeway to punish.
But “as a public institution, the university is bound by the First Amendment,” he said. “It’s a state actor. The First Amendment limits what it can do in response.”
What Colleges Can Do
Free speech has become a more salient issue on campuses across the country in recent years. In 2017 a freshman at East Tennessee State University was arrested and charged with civil-rights intimidation after he donned a gorilla mask to taunt Black Lives Matter protesters. He withdrew from the university but was later cleared of felony charges.
President Trump signed an executive order last March that threatened a loss of federal funding to colleges and universities that fail to protect free speech. Critics said they worried that the order was subjective and could be interpreted in many ways.
Another campus free-speech debate erupted less than a month later, as two University of Arizona students were charged with misdemeanors after calling border-patrol agents “murderers.” Some conservative news outlets argued that the students had violated the free-speech rights of the border-patrol agents, who were visiting the campus to speak about job opportunities in law enforcement.
Colleges must come up with plans to handle incidents like the one at UConn before they occur, Deutchman said. Higher-ed institutions should provide civic education to new students, she said, so they understand the First Amendment and how to be responsible with their free speech.
In order to protect all speech, we protect speech we don’t like.
“In order to protect all speech, we protect speech we don’t like,” Deutchman said. “There are many things that schools can and should do — they just can’t take that step of disciplining someone because of constitutionally protected speech.”
Steinbaugh cited Georgia Southern University’s response to book-burning on the campus as an example for other institutions to follow in reacting to problematic campus speech.
Colleges can deal appropriately with such speech but not infringe on it, he said, if faculty members, say, educate students on the historical context of book-burning. He also commended how the campus media had covered the events at Georgia Southern.
