Twin Victories for Free Speech on Campus
February 13, 2004
Affirmative Action Bake Sale Protests Proceed in California and Colorado
IRVINE, Calif., and BOULDER, Colo., February 13, 2004—The Foundation for Individual Rights in Education (FIRE) is celebrating twin victories for free speech on Wednesday, February 12, at the University of California, Irvine (UCI) and the University of Colorado at Boulder (CU). UCI's decision not to interfere with an "affirmative action bake sale" protest held on Wednesday came after intensive public exposure by FIRE of the university's censorship of a similar event last September. CU's decision was made in a last-minute settlement between CU and FIRE Legal Network attorney Robert Corry, who was about to file for a federal injunction to prevent CU officials from interfering with the students' protest.
"Administrators are finally realizing that the sky will not fall when they allow students to exercise their First Amendment and free-speech rights," said Greg Lukianoff, FIRE's director of legal and public advocacy. "The universities just could not justify their arguments that the 'affirmative action bake sales' did not constitute protected political speech."
Affirmative action bake sales have become a widely used form of political parody directed against affirmative action. At UCI, the College Republicans' bake sale protest of September 25, 2003, was halted when administrators ordered them to remove the satirical price list for their doughnuts, saying it violated the university's nondiscrimination policy. When student organizer Bryan Zuetel offered to change the price list to a "suggested price" list, he was told that this would still violate the policy. Barred from communicating their message, the students ended the protest.
According to UCI Assistant Dean of Students Byron Breland, Wednesday's sale was allowed to take place without administrative interference because the College Republicans' signs explicitly listed "suggested prices" for the doughnuts. Zuetel pointed out, "Last September, the administration dismissed our offer to change to 'suggested prices.' The fact that they accepted it this time suggests that they knew very well that our first bake sale was purely satirical, but used a lame excuse to shut it down anyway because they didn't like what we had to say."
Wednesday's bake sale at CU ran into trouble with administrators even before it started. On Monday, February 9, CU informed the College Republicans and the Equal Opportunity Alliance—the student groups who were to hold the sale—that they would not be permitted to do so because, CU claimed, the students would be engaging in discrimination. FIRE Legal Network Attorney Robert Corry quickly stepped in, informing CU that he would be filing for an injunction on Tuesday at noon to force the university not to abridge the students' First Amendment rights. The planned bake sale was a political protest, not an exercise in discrimination. Corry noted, "CU must have flunked Satire 101."
Under this threat of court action, CU quickly agreed to settle the issue. Backing off its earlier total ban on the sale, the university agreed not to interfere with students as long as they charged only "suggested prices" for cookies and agreed to use race only as a "plus factor" in determining the price. Since this would not defeat their goal of engaging in a parody of affirmative action, the students quickly agreed to CU's proposed settlement, and the bake sale went on without administrative interference.
At the sale itself, however, some students who opposed the bake sale protest attempted to silence it. A large crowd surrounded the bake sale booth and refused to let anyone through for a time, while a few students vandalized the booth, stealing cookies and tearing down signs.
"It is a shame that some students were not satisfied with matching protest with protest and debate with debate, but instead resorted to illiberal tactics," said FIRE's Lukianoff. "Nonetheless, this is an essential victory in the battle for free speech on America's college campuses. Now that UCI and CU have reversed their earlier decisions and decided to respect students' First Amendment rights, both sides of this important debate may proceed."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, civic leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, freedom of conscience, and due process on our nation's campuses. Please visit www.thefire.org to read more.
Greg Lukianoff, Director of Legal and Public Advocacy, FIRE: 215-717-3473; firstname.lastname@example.org
Robert J. Corry, Jr., Law Offices of Corry and Fellows, LLP: 303-634-2244; email@example.com
Ralph J. Cicerone, Chancellor, University of California, Irvine: 949-824-5111; firstname.lastname@example.org
Richard L. Byyny, Chancellor, University of Colorado at Boulder: 303-492-8908; email@example.com