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Cal Poly President Jeffrey Armstrong cannot legally expel former Lambda Chi Alpha member Kyler Watkins.

Community members called for his expulsion after a picture of him surfaced on social media wearing blackface at a fraternity brotherhood event earlier this month.

Watkins is protected by Education Code 66301, which was passed by the California legislature, Chief Counsel for the American Civil Liberties Union of Southern California Peter Eliasberg said.

[aesop_quote type=”block” background=”#f3f2f4″ text=”#000000″ width=”content” align=”left” size=”1″ quote=”Neither the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” cite=”Education Code 66301″ parallax=”off” direction=”left” revealfx=”off”]

“California law is actually statutory law, we’re not talking about the First Amendment,” Eliasberg said. “Schools cannot discipline students for engaging in speech that would be protected off campus.’”

The code also says that a student who is disciplined in violation of the code may start a civil suit against the university. The code does say that a student can be disciplined for harassments, threats or intimidation.

Armstrong said at an Associated Students, Inc. (ASI) Board of Directors meeting April 17 it took three to four days for a team of lawyers from across the California State University (CSU) system to determine he could not expel Watkins.

“The definition of [free speech] crossing the line and not being protected is [if] it’s directed at a person, it harasses them, it impedes their specific learning environment, or it incites violence,” Armstrong said. “This was reviewed and found that the picture — the pictures — were there on social media and were protected.”

Watkins wearing blackface is symbolic speech, which is protected, according to attorney and business law and media law professor Stephen Stern.

“Painting one’s face black as [a] joke or symbol or what have you is protected,” Stern said. “As far as I read into the Constitution, the Bill of Rights, Supreme Court rulings, Circuit Court rulings, it is.”

Free speech in universities in other states, such as the University of Alabama where a student may have been expelled for shouting racial slurs, is not statutorily protected by the state as it is in California.

It is also unknown if the student was expelled, because publishing disciplinary measures is forbidden by federal law, Armstrong said at the Board of Directors meeting. A statement from the University of Alabama only said that the slurs were said by a former student.

As publishing disciplinary measures is forbidden, Cal Poly cannot discuss the matter according to university spokesperson Matt Lazier.

“Privacy laws preclude the university from discussing or acknowledging any specific student disciplinary cases,” Lazier wrote in a message to Mustang News. “So I am not able to comment on that matter one way or the other.” 

For the same reason, it is unknown how many times or for what reasons students have been expelled from Cal Poly recently.

The terms of expulsion are detailed in Executive Order 1098 and the Standards for Student Conduct.

Included in grounds for student discipline are plagiarism, physical threats and sexual misconduct, as well as using illegal drugs, possessing ammunition on campus and obstruction of traffic.

Sanctions for these activities can include restitution, loss of financial aid, probation, suspension or expulsion, but sanctions levied in each case are decided individually.

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