Racial Preferences Bake Sale as Symbolic Speech
The student newspaper for the University of California at Irvine published an editorial in 2003 about a racial preferences bake sale hosted by the College Republicans as a protest against racial preferences and to encourage students to vote for the Racial Privacy Initiative. The measure, which failed to pass, would have amended the California constitution to bar state and local governments from classifying residents by race.
Although the editorial’s six years old, I wanted to address the author’s erroneous conclusion, because I’m sure other opponents of such sales make the same claim.
A typical “affirmative action” bake sale: items are priced based on race. For instance, students of Asian descent are charged the most for baked goods and black students charged the least. The goal is to illustrate the inherent unfairness and offensiveness of lowering standards for certain races while keeping standards high for others.
The school’s dean asked the group to shut down the sale.
The editorial writer agreed with the dean. “Under the First Amendment, people are given the freedom of speech and the right to espouse whatever opinions they wish. However, selling doughnuts was an action.”
The First Amendment prohibits the government from making laws that curtail the freedom of speech; however, the Supreme Court has interpreted the First Amendment to restrict such speech as obscenity. The court also has interpreted the amendment to extend protection to expression, and included in this category is “symbolic speech.” This category of speech is typically, though not always, non-verbal. Racial preference bake sales, actions that express an idea, can be classified as symbolic speech.
In 1974, the Supreme Court held in Spence v. Washington that displaying an American flag upside down (in protest of the Vietnam War) is protected expression, or symbolic speech. In affirmative action bake sales, students are expressing disapproval of a school policy they believe is discriminatory.
One may disagree with the court’s interpretation or my applying Spence to affirmative action bake sales on college campuses. The point is, certain actions may be considered protected forms of expression. The editorial writer’s comment that “selling doughnuts was an action” does not exclude the action from First Amendment protection.
