Chalk is Talk: Is Wesleyan’s Chalking Ban Illegal?

, by Eric Stephen, Assistant Editor-in-Chief, Emeritus

Weighing University Justifications Against Employee Rights
To be sure, the University would be well within its rights to enforce time, place, and manner limitations on speech. However, the ability to limit speech does not translate to a total ban to protect its interests. Each of the University’s interests may be accomplished with other, less restrictive means that would allow the protected chalking under §31-51q to survive. As a result, the University justifications arguably prove insufficient to override protected speech, and the proscription remains overbroad.

“As-Applied” Challenges to the Moratorium
The possibility of a facial challenge to the chalking ban on the grounds of overbreadth was discussed above—the moratorium was unacceptably overbroad in that it proscribed both protected and unprotected speech. In addition to this facial challenge, an “as applied” challenge questions whether the policy appears content-neutral in face but is actually content-based or viewpoint-based as applied. This is to say, is the University inappropriately stricter on enforcing the ban in certain areas of campus or on certain content?

More sleuthing would need to be done to deduce an empirical answer. However, it at least appears that the answer may be yes. Chalking that occurs outside Usdan, for example, seems to be routinely washed away much more quickly than chalking that occurs, say, on the walkways above Foss Hill.

Furthermore, let us take as an example the chalk portraits featured on Wesleying on March 5. Although Wesleying provided photographic evidence of the chalking as well as the locations, these were not erased but were instead left exposed in all their sordid, fiendish glory until they were covered by the March 8 snow. Unless the University is unaware of Wesleying’s existence, the question becomes why the administration did not jump to destroy the chalking. Is it because the chalking was not controversial? Is it because they added some aesthetic beauty (in contrast to the argument made by Bennet above)? Is it because they were not displayed so prominently on college row? Whatever the reasoning, the fact of the matter is that these pieces were not erased despite the blanket ban on all chalking. If all chalking is not erased with the same tenacity, then questions emerge as to whether the ban was really intended to be a content-based—or worse yet, viewpoint-based—limitation on student speech.

If this is true, then students facing discipline for chalking could argue that the moratorium is invalid as applied. It could be argued that those being disciplined were disciplined because of the content and location of their chalking more than the chalking itself. The administration cannot legally cherry pick those chalkings that it particularly dislikes for punishment given the language of the policy. If there is a systematic failure to enforce the elimination of certain chalked content, this could itself jeopardize the legality of the policy as applied.

But again, more data is needed before this argument can effectively be made.

Summary (For the TL;DR Reader)
Both state and federal courts have granted the possibility for state laws to protect individuals from infringements on the freedom of speech by private actors. Wesleyan University, as both a private actor and an employer, is subject to Connecticut General Statutes §31-51q, which makes it illegal for an employer to discipline an employee for engaging in political speech that would be otherwise protected by the First Amendment so long as that speech did not jeopardize the employee’s job performance or working relationship. As a result, Wesleyan’s blanket chalking moratorium is questionably overbroad and should be reneged.

However, this does not suggest that the University cannot possibly enact any limitations on chalking. Hate speech, true threats, and obscenity, inter alia, would not be protected speech and can be censored through a case-by-case analysis that applies contemporary community standards. Further, although the University would conform to legal minimums simply by not disciplining student employees who chalk on issues of national concern, it would be encouraged for the administration to expand this both to non-employees, so as not to create an arbitrary and quasi-classist dividing line, and also to chalking that is not of national concern but at the same time does not fall outside the realm of protected speech (such as “Remember you are beautiful” or “Come to the senior art theses in this week!”).

Practical limitations on chalking—such as limits against hate speech or on the time, place, and manner of chalking—could generate an effective policy that furthers substantive goals while still allowing our civil liberties to survive.

Furthermore, this article is also not meant to suggest that students should turn litigation-happy against the administration. Instead, we should understand our rights as students and use those rights to peacefully assemble, petition the administration to rectify its policies, and posit effective alternatives. We should also continue to view chalking as a privilege and speak out against hateful, obscene, and threatening chalkings as a form of civic engagement so that the University can continue to strive toward the goal of inclusion, safety, and security.

Chalk is talk, and it is high time that students and the administration work together to respect the intricacies of that reality.

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  • 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 more rare, I’ll grant) as human beings.

    • 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.

      • wesalum ’78

        It seems that what most fail to appreciate is that this is not a speech issue, but a property rights issue. Each of the surfaces that were routinely used for chalking are private property. The trustees of the University who hold this property in public trust and the employees whom they designate to execute the public trust have broad latitude as to how they choose to use property in furthering the mission. At no time in the past ten years, have I seen the administration or Trustees attempt to restrict the speech of the students. Any restriction have always been with respect to the use of University property. Surely, Wesleyan students remain creative enough to share their message in a way that reaches the intended audience and is constitutionally protected.
        Finally, the University has never outlawed chalking. They have just communicated the consequences for defacing University property. Free choice remains as to whether the message is worth the consequences.

      • wesalum ’78

        It seems that what most fail to appreciate is that this is not a speech issue, but a property rights issue. Each of the surfaces that were routinely used for chalking are private property. The trustees of the University who hold this property in public trust and the employees whom they designate to execute the public trust have broad latitude as to how they choose to use property in furthering the mission. At no time in the past ten years, have I seen the administration or Trustees attempt to restrict the speech of the students. Any restriction have always been with respect to the use of University property. Surely, Wesleyan students remain creative enough to share their message in a way that reaches the intended audience and is constitutionally protected.
        Finally, the University has never outlawed chalking. They have just communicated the consequences for defacing University property. Free choice remains as to whether the message is worth the consequences.

  • Melody Moezzi

    Thanks for this. I’m an alum (2001), and the reason I chose Wesleyan (my “safety”) after getting accepted to other, more well-known universities was because the day I stepped on campus for a visit, I saw a chalking that read, “Keep your laws off my cunt.” At that moment, I knew Wes was for me, and I was right. It had nothing to do with the shock factor or even the political position of the chalking. It was because of the mere fact that this was a place where you could speak your mind freely, where people knew how to use language as a weapon and weren’t afraid to do it. I’m sad to hear that y’all don’t have the same freedoms we did, but I’m happy to see that we still have sharp minds willing to fight for what’s right. Bravo Eric!

    • My “safety?” What a way to both brag and knock your fellow classmates at the same time. By no means is Wesleyan considered a safety school, and to say so insults the achievement of those who got in who considered Wesleyan a reach.

  • Lee Jacobson ’05

    I was a student at the time this occurred. I was told by the student body president at the time that the Aramark cafeteria workers were threatening to sue the school for sexual harassment in the workplace based on sexual and extremely graphic chalkings throughout campus. One chalking that sticks was written outside Foss 10 (next to admissions) on revisit weekend, “I’m going to fuck your son in the ass then make him suck my dick and taste his ass on my dick.” I can assure you, that while most chalkings were tamer, that one was by no means uniquely sexual. President Bennett gracefully decided to take the flack for the chalking moratorium by himself, and not expose the campus workers to the abuse that they would undoubtedly have received from the student body. The student body was unresponsive to several pleas to reduce the graphic sexual content in the chalk messages and the moratorium was a result. Certainly an entire group of employees feeling sexually harassed is of “public concern?”

    • Eric Stephen

      Hi Lee,

      Thank you for your comment.

      In the article on page 4 I take up the possibility of “sexual harrastment hostile environment” at length, concluding that ” so long as the University polices chalking in the same way that it polices its bulletin boards, hallways, and banners, there is nothing to suggest that chalking would itself violate Title VII and thus create workplace harassment.” What may also be helpful is paragraphs 4 – 10 on page 3. I would argue that dozens of lower court cases would suggest that the quote you gave above would be considered obscenity under Miller, and hence not protected. The University has a legal responsibility to respond to such unprotected statements or drawings that foster SHHE, but the doctrine of overbreadth suggests that it cannot proscribe protectable speech in the process of doing this (Page 2). This is what is at issue. I am not suggesting some sort of free speech absolutism where students can write threats, libel, hate speech, etc. without any problem — only that the ban as it exists is questionably overbroad because less restrictive means can be used to further the same ends.

  • This is interesting. It reminds me of a local incident here in LA. I was very involved with Occupy LA, and we had a big brouhaha over chalking. People were cited for chalking on public sidewalks even though it is considered protected speech. Mayor Villaraigosa and the Chief of Police had a press conference in which they said that they had passed a city wide ordinance against it, which even the local reporters had to question the legality of. Occupy media people did some research and a video of the same mayor telling the Livestrong people they could chalk their message throughout the city, and even closed down public streets for the event. The video we made of that contrast was striking. They accepted and even encouraged chalking when it was corporate speech. Then Occupy went to the monthly downtown art walk with chalk and fliers about what happened to Occupiers. And regular art walk goers, many of whom were parents with children, became incensed and starting chalking messages on the sidewalk. Police were called, and arrests were made. Occupy activists left for another event. People came out of bars and restaurants and saw half the LAPD in riot gear blocking an entire street. Someone threw a rock. And a melee ensued. Of course Occupy was blamed for it even though they weren’t even there at the time.

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