Chalk is Talk: Eric Stephen ’13 Analyzes Legality of Wesleyan’s Chalking Ban

chalk

Almost eleven years ago, President Bennet banned the process on Wesleyan’s campus known as “chalking.” Almost immediately, students tried to pressure the administration into lifting the ban to no avail, mostly by recommending that people just chalk anyway (and maybe also by bringing a flood of chalking violations to the SJB) and arguing that the chalking ban was morally and practically unadvisable.

Chalking has seen a resurgence starting last spring, around the ten-year anniversary of the ban, followed by a forum on chalking later that month. Last fall, the need-blind movement used chalking, which swiftly became a goal of its own, including two “legal chalk-ins,” one controversially blocked by President Roth.

Eric Stephen ’13, in a substantial Argus article published today, analyzes the chalking ban from a new perspective: that the chalking ban actually violates free speech rights protected by Connecticut state law, and should thus be reversed on legal grounds. A condensed version of Eric’s argument is posted below:

In today’s issue, The Argus will be publishing an article that critically examines the legality of the chalking moratorium imposed by President Douglas Bennet in 2002 and maintained by Michael Roth after he took over as the University’s President in 2007. The article argues that Wesleyan’s chalking ban is unenforceable because it violates free speech rights that are legally protected by Connecticut state law. However, the Argus article is designed to provide legal detail for a series of arguments supporting and opposing the chalking ban; for students who are not interested in the minutia of law, Wesleying has offered me the opportunity to give a brief review of the article for their site.

According to President Bennet in a campus-wide email in 2002, the University administration initiated the chalking moratorium after it began facing growing concerns regarding obscene, discriminatory, and threatening chalking on campus. Instead of playing the censor and distinguishing between chalking it would allow and chalking it would not, the administration found it necessary to instead limit all chalking on campus so that the negative content could sufficiently be controlled.

The problem with this approach, the Argus article argues, is that such a blanket policy is overbroad in that it infringes upon some protected speech in an effort to stamp out speech that is unprotected. The protected speech at issue here comes from Connecticut General Statute §31-51q, which, in brief, protects some employee speech from infringement by an employer. Under the statute, Wesleyan University—as an employer of faculty, staff, and hundreds of student workers—therefore has a legal responsibility to respect the First Amendment free speech rights of its employees, even though Wesleyan is considered a private actor. The speech referred to under the statute is specifically political speech (and possibly apolitical religious speech); we do not argue that the obscene, oppressive, or threatening speech at issue in 2002 should be afforded any protection.

The University administration has advanced four specific arguments over the last decade via campus-wide email, forum discussion, and the Wesleyan Student Handbook to justify the moratorium’s breadth: the dangerousness of anonymous speech; the need to maintain a safe work, living, and educational environment; the value of campus aesthetics; and the respect of University property. The article takes each of these four arguments and demonstrates that none of them legally, logically, or ethically provide sufficient justification to infringe upon speech so drastically. Each of these four goals could be accomplished through less restrictive means than a blanket prohibition on an entire medium of communication—time, place, and manner restrictions have all been historically upheld by the courts as acceptable limitations that must first be considered by the University to avoid overbreadth.

The point is that it would be legally questionable under Connecticut state law to discipline (via a fine, for example) any student who is employed by the University for chalking political messages. This is the bare minimum that needs to be reformed in order for the policy to be legally valid.

From this legal minimum, however, other concerns emerge: Is there any substantive point to maintaining the arbitrary dividing line of employed/unemployed for student chalkers? What should be the fate of chalked messages that are not political in the legal sense but also do not amount to unprotected speech (including informational content such as “Come to the senior dance theses today at 4!” or whimsies such as inspirational quotes or artistic displays)?

Simply put, the chalking policy, as it exists now, is overbroad in a way that would likely not hold up to judicial scrutiny and, as a result, should no longer be enforced. The current blanket policy should instead be supplanted with more sensible time, place, and manner limitations created through dialogue between the administration, students, faculty, and staff. Such a dialogue could also open the doors for allowing non-employed student speech to be respected as well as apolitical but unharmful speech to survive. However this new policy is crafted, it will enable legally protected speech, thereby meeting legal requirements.

Thus, it is time for students to come together and protest Wesleyan’s invalid chalking policy, for us to tell our administration that it is not above the law. It is time for us to demand that students have a voice in our how the University’s policies are crafted and maintained. This is not simply a minor issue of speech rights, but a broader concern over what kind of community we wish to have and how we are to be treated by our administration.

Again, this brief is not intended to be comprehensive of the article’s entire argument. Broader discussions about the anonymity of chalking, the University’s Title VII requirements, constitutionally valid time-place-manner limitations, the blurry line between protected and unprotected speech, and the limitations of the overbreadth doctrine can all be found in the article, as well as an elaboration on the points made here. Given the importance of this issue, I encourage everyone to read the article from The Argus (link here) or in print, and I will be able to answer any further questions at estephen[at]Wesleyan[dot]edu.

For more voices on the chalking moratorium, check out Wesleying’s chalking tag, a guest post by Ross Levin ’15, and the series of interviews by Zach addressing the moratorium ten years out.

WESRETROSPECTIVE: A Decade Without Chalking, Part One
A Decade Without Chalking, Part Two: An Interview with Matthew M ’05
A Decade Without Chalking, Part Three: An Interview with Claire Potter
A Decade Without Chalking, Part Four: An Interview with Nicholas Myers ’05
A Decade Without Chalking, Part Five: An Interview with Dean Mike Whaley

5 thoughts on “Chalk is Talk: Eric Stephen ’13 Analyzes Legality of Wesleyan’s Chalking Ban

  1. alum

    Only at Wesleyan would people be this concerned about CHALK. At least people aren’t clamoring for crayons to write on the shiny white walls of Fauver.

  2. Jacon Mayer '10

    Nice article Eric.

    Unfortunately, what you don’t address is the contract Wesleyan forces students to sign: the Code of Non-Academic Conduct. The code is riddled with broad language that essentially grants the University the power to do whatever it wants, and students are then contractually bound to let them. There are any number of clauses in the CNAC that would be illegal as policies, but as a contract are perfectly legal. Since you clearly enjoy legal research, I’d love to see an article that expounds on those flaws in the CNAC. In my mind this is but one example of how the University abuses its position of power to infringe on students’ rights as citizens of the United States, residents of CT, and (this is less frequent, I’ll grant) as human beings.

    1. Eric Stephen

      Hi Jacon,

      Thank you for your comment !

      I think you raise a good point, and admittedly I don’t know much about contract law. I think I would need to look more into the language and logic of CNAC when students pledge to it before I say anything concrete. However, here are some thoughts:

      First I would want to question whether this could really be considered an “employment contract”. I do not dispute that employment contracts can limit the First Amendment rights of employees, but I am wondering if CNAC has anything built in that’s actually about employment (vs. student life). Many students come to Wes and get campus jobs, many students don’t. And many people who work for the University are not students under CNAC. To say that a pledge everyone takes when coming to Wesleyan, even those who never intend to or never do get a campus job, is an employment contract seems illogical. It seems like the contract would be presented when you actually apply for a campus job (maybe when you fill out your W-4 ??). To me, it seems like what your referring to would be much closer to the community contract my grandparents signed when the moved into a retirement community than an actual employment contract, and so it may be difficult for the University to argue it should be read so expansively.

      But assuming my sophomoric understanding of contracts is wrong and what your referring to actually can be seen as an employment contract — from what I understand, state employment statutes can still provide relief. State employment statutes wouldn’t have any teeth if any employer can just say “in order to get this job you have to sign this contract that accepts that we are above the law, including laws that explicitly protect you as an employee from me”. I believe that any employment contract must be made with current employment statutes in mind, including sec. 31-51q above.

      But I think what you’re getting at is the broader question of what happens when someone wears the hat of student (no speech rights) and also the hat of employee (some speech rights) when the two are in tension. I would argue that the University should not think it can disregard student employee rights just because it also plays landlord and educator on top of employer, which I touch on a little bit in the Argus article.

      These are just my first thoughts, and this is definitely something I will look into, so thank you for bringing it up. Maybe others reading this will know more than me here too? I hope my first thoughts may be useful though in the meantime.

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