[IvySpice]

Regarding first amendment rights...

Racist messages are protected by the first amendment unless they are plausible threats or foreseeable incitement to riot. It would be hard to argue that this costume posed an immediate threat to public safety.

That being said, all speech is subject to time, place, and manner restrictions, and even a public university is entitled to set standards for discourse on campus. If you wanted to publish a sexually explicit short story in a campus magazine, for example, the school could set rules about where it can be distributed, how it must be labeled, etc. Similarly, if you want to announce to the campus, "I'm an ignorant redneck with no respect for myself or my fellow students" (which is the verbal version of wearing blackface on Halloween), there are appropriate ways to communicate that idea. As I read the law, it would not be unconstitutional for the university to require students to express themselves -- regardless of the message -- in a civil manner. If they don't enforce those rules, in fact, they may be legally complicit in the racial harrassment of black students.

No matter what the university does, though, the fraternity is a private organization which can evaluate whether this kind of behavior is in accord with the values they hold. If it were up to me, I'd pull this guy's badge before you could say "Stepin Fetchit." The very best thing you can say about him is that he has no common sense, and brothers with no common sense are inevitably going to embarrass the organization.

Ivy, J.D.