UPDATE: December 18
Muskegon Community College has indicated that they will approve the GSA's application to sponsor a "drag show" on campus.
DETROIT -- The ACLU of Michigan sent a letter to the Muskegon Community College's attorney today urging the colllege to reverse its position and to permit that a gay student group to stage a “drag” show on campus.
The Gay Straight Alliance, a school-recognized group who hope to have the show, followed appropriate procedure for requesting the use of the college cafeteria to present a fundraiser talent show that would include cross-dressing performers.
“Public colleges cannot censor the speech of a particular student organization because it finds such speech to be offensive,” said Jay Kaplan, staff attorney for the Lesbian, Gay, Bisexual and Transgender (LGBT) Project. “As long as the performance would not materially and substantially disrupt the work and functioning of the college, a talent show sponsored by the GSA and featuring cross-dressing performers is protected by the First Amendment.”
President Marczak denied the student group’s request for the show calling it “sleazy”, citing concerns about the show’s possible sexual innuendo and that such a show would discourage potential financial donors to the college. Marczak admitted in an interview with the Muskegon Chronicle that his knowledge of “drag” shows is limited to “what I’ve heard and seen on TV.” Marczak has told the students that they can have a talent show as long as the show does not include “drag” performers.
The ACLU is asking the college to reverse its decision by December 23, 2003, stating that they are prepared to go to court should MCC not do so.
The text of the letter reads:
December 17, 2003
Warner Norcross and Judd LLP
400 Terrace Street
P.O. Box 900
Muskegon, MI 49440
Re: Muskegon Community College GSA
Dear Mr. Veldman:
As we discussed over the phone, I am the staff attorney for the ACLU of Michigan’s Lesbian Gay Bisexual and Transgender Project. We are concerned regarding Muskegon Community College (MCC) President Frank Marczak’s decision to deny MCC’s Gay-Straight Alliance student group the use of cafeteria to present a fundraiser talent show that would include cross-dressing performers.
According to an account in the December 5, 2003 issue of the Muskegon Chronicle and interviews with students and staff, President Marczak vetoed plans for a “drag show,” calling such an event “sleazy.” It is our understanding that pursuant to MCC’s Student Organization Committee Guidelines for Clubs, the GSA followed the appropriate procedure in requesting use of the cafeteria for its proposed December show, including filling out an event proposal form. However, Mr. Marczak, upon hearing of a proposed “drag show,” took it upon himself to intervene in this procedure and to deny the GSA’s request. Mr. Marczak stated that he was concerned that a “drag show” would reflect negatively on MCC’s image and might discourage possible financial donors. Since the Muskegon Chronicle article’s publication, Mr. Marczak has informed the GSA that it may hold a talent show as long as no cross-dressing performers are part of the show.
In addition, according the GSA’s faculty advisor, Mr. Marczak stated that he would more likely to permit other non-gay groups to hold a “drag show.” Mr. Marczak now denies having made such statement, but the faculty advisor stands by his account of this conversation.
We believe that Mr. Marcazk’s action denying the GSA members use of the cafeteria because they wish to present a “drag show,” raises serious First Amendment concerns. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v Des Moines Independent Community School District, 393
US 503, 506 (1969). State community colleges and universities “are not enclaves immune from the sweep of the First Amendment.” Healy v James, 408 US 169 (1972). The college classroom and campus facilities are the “marketplace of ideas.” Keyishian v Board of Regents, 385 US 589, 603 (1967)..
Public colleges are recognized as limited public forums open to students and other selected groups. Widmar v Vincent, 454 US 263 (1981). When permitting student organizations to utilize school facilities for activities and events, appropriate time, place and manner restrictions on free speech are permissible. However, a state college many not suppress expression because it finds that expression offensive. See Iota IX Chapter of Sigma Chi v George Mason University, 773 F Supp 792 (ED Va 1991) (Fraternity’s sponsorship of contest in which members dress as caricatures of “ugly women” expression protected by the First Amendment); See also Swope v Lubbers, 560 F Supp 1021 (WD Mich 1983) (Grand Valley State’s refusal to transfer funds requested by student group to show X-rated film held to violate First Amendment rights).
This is not a situation where the GSA failed to follow proper procedures for requesting the use of school facilities to hold an event. Mr. Marczak has denied the GSA’s request solely because he disagrees with the type of talent show the GSA wishes to produce. A community college may not censor the speech of a particular student organization because it finds such speech to be abhorrent. Healey, 408 US at 179. The First Amendment does not recognize exceptions for ideas or matters some may deem trivial, vulgar or profane. Iota IX Chapter of Sigma Chi, 773 F Supp at 795.
While President Marczak has cited his concerns that permitting the GSA to hold a “drag show” may deter some potential funders to the state college, this is not a compelling interest to satisfy the strict scrutiny standard for denial of First Amendment rights. Widmar, 454 US at 272. Furthermore, President Marczak has failed to allege that such performance would materially and substantially disrupt the work and functioning of MCC. See Tinker, 393 US at 513.
We are requesting that President Marczak reverse his decision and permit the GSA to hold a “drag show” on campus. Mr. Marczak’s suggestions that the GSA can have a talent show without cross-dressing performers or that he would permit a show without “sexual innuendo” are unacceptable. We believe that the law is very clear on this matter and are prepared to litigate this issue. Accordingly, we would appreciate a response to our request by December 23, 2003. Thank you for your attention to this matter.
Jay Kaplan, LGBT Project Staff Attorney
Peter J. Armstrong, President, Western Branch ACLU of Michigan