‘Affirmative Action Bake Sale’ Disrupted at UT Austin

Everyone loves a good bake sale, right? Well, apparently not.

Last week, the University of Texas at Austin chapter of Young Conservatives of Texas held an “affirmative action bake sale,” where the prices of the baked goods varied depending on the racial identity of the purchaser. The event, which was designed to critique affirmative action policies, was not received well by many in the UT Austin community.

As reported by Campus Reform, the bake sale was thwarted when student protesters destroyed the Young Conservatives’ sign listing the prices and stole their baked goods.

While FIRE takes no position on the merits of affirmative action, there is no doubt that protesting affirmative action with a bake sale of this nature is core political speech protected by the First Amendment. (Bake sales with different prices are a common form of political expression that have been used to highlight not only affirmative action, but the gender pay gap too.) Protesting the bake sale also qualifies as protected speech that nicely fits the model of responding to speech one finds distasteful with speech of one’s own. However, the students who destroyed the signs and stole the baked goods crossed the line from engaging in their own counter-speech to becoming agents of censorship. Their actions may have even been petty crimes.  

Compounding matters further, some of the protesters are circulating a petition demanding that the Young Conservatives chapter be banned from the UT Austin campus and the student government entertained a non-binding resolution urging that the organization be disbanded. While calls to ban the organization also constitute protected speech that FIRE would defend, it would be unlawful for UT Austin to give in to the demands outlined in the petition or the resolution. In University of Wisconsin v. Southworth, the United States Supreme Court held unequivocally that public universities cannot discriminate against student organizations on the basis of the organization’s beliefs. Such differential treatment would constitute viewpoint-based censorship, which is prohibited by the First Amendment.

Dr. Gregory Vincent, a UT Austin law professor who also serves as the institution’s Vice President for Diversity and Community Engagement, issued a statement about the controversy. He condemned the Young Conservatives while remaining silent regarding the actions of those students who censored their peers and may have even broken the law by stealing the price list and baked goods from the bake sale. This is unfortunate. Condemning protected speech while giving a free pass to those who engage in censorship sends the wrong message to students. When law professors don’t stand up for the expression of unpopular views and turn the other way when they are aware of egregious acts of censorship, they foster an environment where stifling unpopular views is seen as fair game. In the process, they undermine the very foundation on which higher education was built: the free exchange of ideas.

Thankfully, the UT Austin administration has concluded that the bake sale was protected speech. In an email to a student newspaper, The Daily Texan, a university spokesman said:

The University does not and will not take any punitive action against an organization or its members for exercising their constitutional right to free speech.

[...]

The right to freely express views is vital to the health of our university even if some find that expression offensive or disrespectful. For this reason, UT will continue to protect students and student organizations in the exercise of their right to free speech.

Hopefully, this ugly episode will be an isolated incident at UT Austin. FIRE hopes the campus community will take this as a cue to foster an environment that encourages critical debate on controversial topics without resorting to censorship.