January 27, 2014

Michael M. Crow José A. Cárdenas

President Senior V.P. and General Counsel

Arizona State University Arizona State University

P.O. Box 877705 P.O. Box 877405

Tempe, AZ 85287-7705 Tempe, AZ 85287-7405

Michael.Crow@asu.edu JCardenas@asu.edu

Re: Students’ protected freedom of expression

Dear President Crow and Mr. Cárdenas:

The ACLU of Arizona is concerned about Arizona State University’s

next steps with regard to the students involved with the Tau Kappa

Epsilon fraternity “party” on January 19, 2014.

We have strongly criticized the offensive, racist theme that TKE

members chose for the event they held the day before our federal

holiday honoring slain civil rights leader Martin Luther King Jr. In

The Arizona Republic I characterized the students’ prejudiced

gathering as a "conscious attempt to degrade an entire race.”

But the fact that these students’ choices were ignorant and

insensitive does not infer that serious discipline or expulsion would

be legal in the absence of interference with school activities or use

of school property. It is well established that governmental

retaliation based on disagreement with students’ words or

messages is antithetical to the fundamental protections of the First

Amendment of the U.S. Constitution.

ALESSANDRA SOLER

EXECUTIVE DIRECTOR

ZENAIDO QUINTANA

PRESIDENT

DANIEL POCHODA

LEGAL DIRECTOR

dpochoda@acluaz.org

It is easy for governmental bodies, including public universities, to

allow speech and expression that it favors. History demonstrates

that coercive governmental powers are primarily aimed at minority

and unpopular views. The test of our constitutional protections is

whether they will be heeded when faced with distasteful, or even

hateful, statements.

Courts have long recognized that allowing a so-called “hecklers

veto” on the content of speech wherein the government suppresses

speech because of the reaction it elicits, undermines the

constitutional protection and reduces the ability to express

unpopular or anti-government views. ASU should not penalize the

students because of negative reactions from the ACLU or others

although some form of intervention may be constructive.

I am available to discuss this further and can be contacted at 602-

650-1854 or dpochoda@acluaz.org.

Sincerely,

Dan Pochoda

Legal Director

ACLU of Arizona

AMERICAN CIVIL LIBERTIES UNION OF ARIZONA P.O. BOX 17148 PHOENIX, AZ 85011-0148 P/602-650-1854 F/602-650-1376 WWW.ACLUAZ.ORG