Kutztown University has just announced that it’s lifting its ban on Confederate flags (and Nazi flags), a ban that extended even into students’ own dorm rooms:
Kutztown University recently announced a proposed change to its housing decoration policy restricting the display of symbols that promote messages inconsistent with the values of the university. Upon learning of the change, university legal counsel asked us to refrain from implementing the policy in order to permit a review for constitutionality. As a result of this review, references to any specific content, such as symbols, will be removed from the policy. The university will educate our students and other members of our community, so they will understand the historical and modern context for these symbols, and we will continue to advocate for an environment wherein all those associated with our university can feel valued and safe.
I still don’t like universities’ use of “safe” to mean “safe from offensive speech.” But at least the First Amendment violation is apparently going away.
UPDATE: Note that if the university is planning on keeping the other part of the policy — “[a]ll decorations in common areas in the residence hall and apartments must take into consideration that obscene, distasteful displays which are demeaning to an individual’s or group’s race, ethnic, religious background, and/or gender or ability, will not be permitted and will be removed immediately” — that too would violate the First Amendment, as the earlier post explained.
UPDATE: A commenter suggested that a university could ban Confederate flags, because of the Supreme Court’s recent decision allowing Texas not to print Confederate flag plates as part of its specialty license plate program. But that’s not right: Viewpoint-based restrictions on people’s speech are unconstitutional, even when the government is specifying which signs people may post on government property.
For example, when a city opens up advertising space on city buses, it may not discriminate based on viewpoint. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. (1985) (so noting, in its discussion of the Lehman v. City of Shaker Heights case). And the license plate case, Walker v. Sons of Confederate Veterans, reaffirmed that principle. Though a government may exclude the Confederate flag from its own speech (as Walker held), it can’t bar its display by students, even on the government’s property.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.