Court to hear hate-crime case; could affect speech codes

Robert Viktora probably did not think academia would be interested in his burning a cross on the front lawn of a black family last June. But one year later, the American Civil Liberties Union has trumpeted Viktora's case, bringing it to the U.S. Supreme Court today as a test to the constitutionality of hate-crime legislation. Many experts say RAV v. St. Paul will shape the way universities draft their own harassment codes, although most agree that it would not be legally binding at private institutions such as the University. "This will totally disrupt the effort on campuses to control hate-crime," said Mark Anfinson, one of a host of Viktora's attorneys. "If the Supreme Court says the St. Paul ordinance is unconstitutional it will knock [universities' harassment policies] out an eighth story window." But Anfinson added that he does not think there would be any effect on private universities no matter how the Supreme Court rules. Finance Professor Morris Mendelson said yesterday that he is disgruntled by the current code and, although he does not know how the Supreme Court will rule, he hopes the University takes the decision to heart. "I think it is disgraceful the University should [fray] the edges of the First Amendment," Mendelson said yesterday. "It is better to err on the side of academic freedom than loss of free speech." Unlike many other cases, it is unclear how the Supreme Court will rule on the hate-crime case since, according to Anfinson, traditional liberals are "badly splintered" on the issue. He said, for example, the former Supreme Court Justices William Brennan and Thurgood Marshall were staunch supporters of the First Amendment, but also wanted to protect minorities. Assistant to the President Steven Steinberg, who has been President Hackney's chief aide in formulating the University's new policy, said yesterday the new policy was designed to meet two goals -- maintaining free speech and allowing everyone to speak. "We have been grappling with this issue for two years and the new racial harassment policy is the result of that effort to deal with these concerns," Steinberg said. The University's new code is similar to the code at the University of Wisconsin, which was struck down as unconstitutional by a federal court last month. Like the Wisconsin policy, the University's code requires that racist behavior be directed towards an identifiable group, that it be intentionally harmful, and that it insult or demean the race, ethnicity or national origin of a person or group. ACLU spokesperson Lynn Decker said yesterday that her organization believes that the St. Paul hate-crime ordinance -- which is being used to prosecute Viktora -- is vague and hopes the Supreme Court will require it to be redrafted and put forth a constitutional test for future codes across the country. The ordinance states "whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, religion or gender, commits disorderly conduct and shall be guilty of a misdemeanor." Decker said that many forms of speech that are perfectly acceptable would be illegal under this law, including displaying a swastika in one's home. But Minnesota Civil Liberties Union legal counsel Sarah Gilman said earlier this semester that she hoped the weight of the Supreme Court will influence private universities to rethink their policies. And there is precedent for the University to reconsider its code when a court ruling had been handed down. The current revisions in the University's code were largely spurred by a Michigan federal court ruling two years ago, which stated that the University of Michigan's harassment policy -- which was then almost identical to the University's former code -- was unconstitutional. "Michigan's policy was narrower and had a more limited scope than the St. Paul ordinance," Anfinson said. "But, they are of the same genus."

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