Contributor, The Volokh Conspiracy

Republican presidential candidate Donald Trump. (Mike Groll/Associated Press)

The San Diego Union-Tribune (Debbi Baker) reports on a controversy about pro-Donald Trump sidewalk chalking at the University of California at San Diego, which drew this response from Prof. Ivan Evans, the provost of one of the six UC-San Diego undergraduate colleges (Eleanor Roosevelt College):

ERC Condemns Vandalism On Campus

It is with dismay that the ERC community and the campus at large learned that vandals, as yet unknown, defaced university property on Friday by chalking offensive comments on the sidewalks close to the Raza Resource Centro and on Library Walk. It is not yet known if the culprits were students. The incident occurred on Friday night and included the comments “build the wall”, “deport them all”, “Mexico will pay”, “make America great again” and “Tritons 4 Trump.” ERC joins the UCSD community in rejecting any attempt to sow division by stigmatizing certain populations or communities. The target in this case appears to be Mexico and Latino/a students. Students have every right to protest against this latest attempt to roil the campus, but it is also well to recall that we have learned from similarly repugnant incidents before. ERC therefore urges the campus at large to reframe this incident as an occasion to acknowledge the persistence of gross insensitivity in American society and insist on greater multicultural understanding on campus. Whoever furtively inflicted this incident on campus does not deserve the attention they cannot receive through rational discourse and open debate. In condemning the incident, ERC expects that any violation of UCSD’s Code of Conduct will be treated with the greatest seriousness and draw the fullest sanctions that may apply.

Well, there certainly does seem to be gross insensitivity at UC-San Diego toward the views of many Americans, and a lack of interest in trying to understand their cultural values. But I’m a bit puzzled about just how the chalking might violate UCSD’s Code of Conduct, “and draw the fullest sanctions that may apply” (except insofar as zero is “the fullest sanctions that may apply,” if no sanctions apply).

The university, as owner of its property, might have the power to prohibit all chalking on that property (whether or not the state has the power to do the same as to ordinary public sidewalks). But UCSD policy expressly provides that chalking is permitted “on sidewalks of the university grounds that are exposed to weather elements and not covered by a roof or overhang.” When I asked Provost Evans about this, he stated that “The code permits chalking sidewalks, but not walls. The latter is viewed as vandalism,” and in response to a later email confirmed that he thought the chalking also appeared on walls. But his statement mentioned “chalking . . . on the sidewalks,” with no reference to walls; the statement thus seems to me to implicitly convey to students that chalking such slogans on sidewalks is forbidden. Likewise, the UCSD statement on the matter mentions only sidewalks:

A series of incidents occurring on college and university campuses across the United States have reflected our nation’s current divisive political climate. Unfortunately, late Friday evening graffiti promoting the deportation of undocumented immigrants and the construction of a wall on the border of Mexico was discovered chalked on UC San Diego’s campus sidewalks. This graffiti runs counter to our campus values of equity and inclusion. We value diversity and respect for all cultures.

UC San Diego is steadfast in the commitment to our Principles of Community which reflect a collective dedication to a campus where we uphold each individual’s right to dignity, justice and respect. We affirm the Principles of Community as the guide for all campus citizens as we move forward to foster the best working and learning environment.

UC San Diego Chancellor, Executive Vice Chancellor and the Vice Chancellors

Perhaps the chalking was on sidewalks that were covered by overhangs, and thus forbidden; when I asked Provost Evans about this, he referred the matter to the Chancellor’s Office, and when I asked them, they just forwarded me the chancellor’s statement that I just quoted. But even if the chalking was on sidewalks that are under overhangs, I wonder what the “fullest sanctions” would normally be — setting aside the viewpoint of the graffiti — for what strikes me as such a fairly technical violation.

Of course, maybe the provost’s statement should be read — especially in light of the general policy allowing chalking — as suggesting that this particular chalking violated the Code of Conduct because it was “offensive,” tried “to sow division by stigmatizing certain populations or communities,” and contained “gross insensitivity” and lack of “greater multicultural understanding.” But any attempt to punish the chalking precisely because of its viewpoint would clearly violate the First Amendment.

I should note that the UCSD College Democrats statement mentioned in the San Diego Union-Tribune article also reported that the chalking included “Fuck Mexicans.” That phrase, like “Fuck the Draft,” would be constitutionally protected speech (at least when not said face-to-face to someone who is likely to be insulted, see Cohen v. California (1971)), but I do think that it would merit condemnation.

But the photos in the article didn’t include that, Provost Evans’s message didn’t mention that, and the UCSD statement didn’t allude to it. If any of you have more details on the matter, please let me know; but it sounds like the provost is trying to communicate something about the messages that he mentioned — “build the wall,” “deport them all,” “Mexico will pay,” “make America great again” and “Tritons 4 Trump” — and not about the message that he didn’t mention.

Thanks to Tim White for the pointer.