Why does the Justice Department view a Halloween costume as racial discrimination?

Why does the Justice Department view a Halloween costume as racial discrimination?
Gay Halloween in New York (Image: YouTube screen grab)

Recently, the Justice Department found that a Utah school district racially discriminated against black children. The Justice Department cited some very disturbing acts of racism and racist double standards. But it also cited acts that don’t seem racially discriminatory towards black people. For example, in its finding of racial harassment by the Davis School District, it cited the fact that “in October 2019, a white student dressed as Hitler for Halloween, marched in a parade throughout his elementary school while performing the Nazi salute, and no school staff stopped him or reported his costume and behavior to school administration.”

Hitler was very evil. But wearing a Halloween costume is not an endorsement of the character depicted in the costume or that character’s beliefs. The whole point of a Halloween costume is to be scary or eye-catching. A person who wears a costume of Jack the Ripper is not thereby endorsing or threatening to commit murder. Similarly, a person who dresses as Hitler is not endorsing the invasion of Poland, or acts of genocide.

Moreover, Hitler’s Holocaust targeted Jews, not blacks, and the Justice Department doesn’t even point to any Jewish students who claimed to be harassed by the Hitler Halloween costume. To show racial harassment, there must be evidence that a complainant “suffered intentional discrimination because of his” race, not just that he was offended, according to some courts. (Caver v. City of Trenton (2005)). That doesn’t seem to be the case here.

Nor did the Justice Department make any finding of antisemitic discrimination, even though the Supreme Court ruled in 1987 that antisemitism is a form of racism under federal civil-rights law.

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My wife, who is Jewish and experienced anti-semitism in her native country, does not understand why the Hitler costume was objectionable.  Nor does she see why the school system should be faulted for it, unless the school district banned other Halloween costumes depicting evil historical figures, such as Soviet dictator “Stalin,” thereby giving the Hitler costume preferential treatment. Otherwise, it’s “free speech,” she said.

Costumes — even offensive ones — can be protected by the First Amendment. Fraternity boys disciplined for wearing blackface and dressing as “ugly women” successfully sued after their university disciplined them, citing their costumes’ creation of a “hostile and distracting learning environment” for women and blacks. A federal appeals court found that the discipline violated the First Amendment. (Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993)).

In the K-12 setting, some offensive speech can be banned, like vulgar speech. But that just means the school system can choose to ban some such speech if it wants to, not that it has to do so, or that it can be ordered to do so by the federal government (if the speech isn’t itself a civil-rights violation).

Historical depictions, such as dressing in military garb, can be protected by the First Amendment even if they offend people on campus. For example, a history professor had the right to place a photo of himself with a Roman-style sword in a campus display case, even though it offended campus feminists who viewed it as threatening, according to the 8th Circuit Court of Appeals. (See Burnham v. Ianni (1998)).

That was in college, where free speech is broader than in K-12 schools. But one can still imagine situations (like historical reenactments) where dressing as Hitler could be protected speech in a school.

The Hitler costume did deeply offend adults in the United Jewish Federation of Utah (and led to a principal and teacher being put on leave).  “Dressing a child as Hitler is intolerably offensive and should never be suggested, permitted, or condoned,” said the Federation. But it doesn’t seem to have made life miserable for any Jewish students.

It’s sad that the costume offended members of the Federation. But the question is not how the costume affected adults outside of the school system, but how it impacted students. To legally constitute discriminatory harassment, conduct has to interfere with an education (not merely cause transitory offense or hurt feelings), or create a work environment that is both subjectively and objectively hostile. (See Davis v. Monroe County Board of Education (1999); Harris v. Forklift Systems (1993)).

When a university banned racial harassment, based heavily on whether racial slurs or symbols were subjectively offensive, an appeals court found that subjectivity to be unconstitutionally vague. (Dambrot v. Central Michigan University (1995)). Conversely, when a state tried to ban expression as religious harassment even when it didn’t create a subjectively hostile environment — only an objectively hostile one — a state supreme court justice, in a concurring opinion, called that unconstitutional. (Meltebeke v. Bureau of Labor & Industries (1995)).

Some might argue that black people find Hitler costumes more offensive than white people do, and that being offended due to your race is a form of discrimination. But the Justice Department didn’t make that argument. And courts don’t accept that argument in other harassment cases, such as religious harassment lawsuits. For example, an appeals court rejected a religious harassment lawsuit by a woman was who deeply offended by a song that was sung to her, due to her religion. “Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions,” said the court. “We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her.” (See Rivera v. Puerto Rico (2003)).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at hfb138@yahoo.com

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