Professors Wrongly Suspended for Halloween Costumes at the University of South Alabama

Three professors have been wrongly suspended over Halloween costumes they wore over six years ago. One of them is being investigated for having dressed as a Confederate general. As the College Fix notes:

Three University of South Alabama professors have been placed on administrative leave over Halloween costumes they wore and posed with at an on-campus party in 2014, the campus has announced. “The faculty members involved have been placed on administrative leave pending the outcome of the investigation and any related proceedings,” university President Tony Waldrop said in a March 5 statement.

The photos show “then-Mitchell College of Business dean Bob Wood dressed as a Confederate general and professors Alex Sharland and Teresa Weldy posing with a whip and a noose,” WKRG5 reports. … Wood and Sharland, who have tenure, have apologized, while Weldy, who is not tenured, “chose not to apologize.”… Waldrop upped his efforts on the nearly 7-year-old matter, calling the costumes and poses “offensive” and “contrary to our core principles of diversity and inclusion.” He pledged in his statement that the university will “address this situation in a manner that demonstrates our unwavering commitment to diversity, inclusion, and a safe and welcoming environment for every member of our community…. the University has engaged the services of an independent, highly qualified external attorney to investigate this matter … pursuant to the University’s policies of non-discrimination and equal opportunity/equal access.”

Halloween costumes have long been a point of contention on college campuses in the era of cultural sensitivity, microaggressions, and cancel culture.

Suspending students for this sort of thing would violate the First Amendment. Halloween costumes can be protected by the First Amendment, even if they are offensive to some students. A federal appeals court has ruled that even wearing blackface and racially offensive costumes is protected by the First Amendment.  (See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993) (offensive blackface skit by students was protected); Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985) (police officer’s off-duty blackface skits were protected by the First Amendment)).

Historical depictions, such as dressing in military garb, are protected by the First Amendment even if they offend people on campus. For example, a history professor had the right to place a photo of himself with a Roman-style sword in a campus display case, even though it offended campus feminists who viewed it as threatening, according to the 8th Circuit Court of Appeals. (See Burnham v. Ianni (1998)).

If professors can be disciplined for wearing confederate garb, it is hard to see how historical reenactments of the Civil War can continue, despite their clear educational value. Many participants in such historical reenactments are public employees, such as teachers and college professors.

The fact that something is tied to the Confederacy does not strip it of First Amendment protection. For example, depictions of the Confederate flag are protected by the First Amendment. (See Sons of Confederate Veterans v. Glendening (1997)).

Wearing a Halloween costume is not an endorsement of the character depicted in the costume or that character’s beliefs. The whole point of a Halloween costume is to be scary or eye-catching. A person who wears a costume of Jack the Ripper is not thereby endorsing or threatening to commit murder. Similarly, a person who dresses as a confederate or carries a whip or a noose on Halloween is not endorsing the revival of slavery or lynching, or the revival of the Confederacy.

The fact that some viewers may have been offended by these costumes did not give the university the right to suspend the professors. For example, an appeals court ruled that a university could not punish a professor for writings that denigrated black people, even though his writings drew a very hostile response from some students (See Levin v. Harleston (1992)).

In Thompson v. Board of Education of Chicago (1989), a federal judge ruled that a teacher’s remarks in a news article about problems in the Chicago school system (such as gang activity) were protected by the First Amendment, even though some minority parents and teachers perceived them as racist and inflammatory. Similarly, a federal appeals court ruled that a professor could teach that Zionism was racism, even though his stance was perceived by some as bigoted and resulted in “growing furor” against him, in Dube v. State University of New York (1990).

On the other hand, professors, unlike students, have to show that their speech is on a matter of public concern to be protected by the First Amendment. While giving performances in blackface is deemed speech on a matter of public concern (see Berger v. Battaglia (1985)), simply wearing a costume to a Halloween Party might not be.

But these tenured professors likely have due process claims if they are fired, or are disciplined for “racial harassment.”  The university president cited the university’s “policies of non-discrimination and equal opportunity/equal access,” suggesting that they are being investigated for racial harassment. But merely wearing a costume does not constitute racial harassment against students or employees.

Courts have ruled that far more offensive behavior does not rise to the level of illegal racial harassment, such as occasional use of the N-word by co-workers that is overheard or witnessed by the complainant. (See, e.g., Bolden v. PRC (1994); Witt vRoadway Express (1998)).

As the Supreme Court has explained, the “mere utterance of an … epithet which engenders offensive feelings in a employee,” such as the N-word, is insufficient to constitute racial harassment when it only occurs once.  (See Meritor Savings Bank v. Vinson (1986)).

Obviously, a Halloween costume, which is not even aimed at anyone, is not as offensive as being called the N-word. As an appeals court explained, “the impact of” behavior not directed at the complainant, “is obviously not as great as the impact of harassment directed at” the complainant.

In light of these court rulings, a college professor would not be on notice that wearing a confederate uniform violates a college’s racial harassment policy. So a state college cannot suspend or fire a professor for wearing such costumes to a Halloween party, without violating due process and principles of fair notice. Professors can’t be disciplined if they didn’t receive fair notice that their expression was forbidden. For example, an appeals court overturned the discipline of a professor for a series of classroom lectures deemed sexually insensitive. It did so because he wasn’t on notice that his remarks — which weren’t aimed at any particular student — would be deemed to fall within the “nebulous outer reaches” of his college’s sexual harassment policy. (See Cohen v. San Bernardino Valley College (1996)).

If “people of common intelligence” wouldn’t have known that such costumes were forbidden, then punishing an instructor for them “violates due process,” even apart from the First Amendment, as judges explained in Bradley v. University of Pittsburgh, 910 F.2d 1172, 1177 (3d Cir. 1990).


This article was originally published by Liberty Unyielding on March 9, 2021 and is crossposted here with permission.

Image: Bekir Dönmez, Public Domain

Hans Bader

Hans Bader

Hans Bader is a senior attorney at the Competitive Enterprise Institute.

3 thoughts on “Professors Wrongly Suspended for Halloween Costumes at the University of South Alabama

  1. Yep. All true.
    But what a shame that such legalistic arguments even need to be made.
    What a shame that ‘bad taste’ and ‘rude’ or ‘inappropriate’ Halloween Costumes must be legally & constitutionally defended against Woke sanction & institutional retribution, here in the 21st century….at a party)…. on a college campus…. in the land of the not-quite-so-free and home of the not-at-all-brave.

    My God what have we become? How many Heepish, blue-nosed, tight-collared prigs have we allowed to rise to such incompetence that such outrageous idiocies are even possible? Who the hell are these people?

    Free speech is free speech. Speech which offends is free speech. The very fact of offense is proof that freedom is real. Absent the offending, absent the annoying, absent anything which roils our placid waters, this is Pleasantville. (“Everybody really likes you, George. No! They do! And it’s not just ’cause you’re a good bowler. It’s ’cause people respect you!) This is Stepford. This is Animal Farm. Without the Offending, we live herded, like right-thinking sheep, chided and guided by those few Enlightened who truly know best, what’s best for us! (Can I get a meek Baaaaa?)

    Can we imagine a fate more horrible? A life more bleak?

    The Boss tells us, the costumes and poses were “offensive” and “contrary to our core principles of diversity and inclusion.” Can we not say, “So what?” So you or anyone else was ‘offended’ by a costume or a pose or a prop….why does that matter? Why should we care?

    As for the principle-less principles of ‘diversity’ and ‘inclusion’? C’mon Waldrop, what is more diverse than an Confederate costume at a Halloween bash filled with a bunch of officiously Woke petty tyrants? What is more inclusive than a party which includes EVERYONE — even those with whom we disagree — even those whose costumes makes us goo “Ewwww!” or give us the ‘vapors’??

    You want Diversity? You want Inclusion? Then let’s give a hearty welcome and round of applause for every costume and every word and every song and every book and every opinion and every single stinking piece of art which tweaks us wrongly. Let us embrace exactly those things which fold, bend and spindle our wound-tight hyper-sensitivities….that is, if we truly value Diversity, value Inclusion, value Freedom.

    You want to be a an adult in the real world, filled as it is with sharp edges, pointy points, hard paths, and ornery people? Well then it’s long past time to grow-up. Either that or stay home, swath yourself in bubblewrap…sniff PlayDoh and color pictures (with the Big Crayons, of course).

    The choice is ours.

    1. The question I ask is why 6 1/2 years later?

      Disregarding the legitimacy of the complaint, you’d have thought this would have been an issue back in 2014 — academia was plenty crazy back then, crazy enough for anyone so inclined to have made an issue of this back then.

      Hence I am thinking that this either was an extortion attempt that didn’t work, or is some sort of “targeted assassination.” In the palace intrigue of higher education, you always want to ask who will be stepping into these people’s jobs. Even if its purported to only be “temporary”, and even if it really is that, this is how unqualified leftists get the credentials that they can use elsewhere.

      The “tenured radicals” have been engaged in a long march through academia for the past 50 years — they seek to advance their own. And hence one must ask who is getting the interim positions….

  2. What people don’t realize about situations like this is even if the student (or professor) is permitted to remain on campus, the university inevitably “gets” them for something else six months later.

    There are so many rules, so loosely defined, that the average student or professor violates at least three a day…

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