Expelling Students From A Public University Over Racist Videos Probably Isn’t Constitutional
Freedom of speech means freedom for all speech, even when it is racially offensive.
At the beginning of the week, the nation was shocked by the release of a video of students from the Sigma Alpha Epsilon Fraternity at the University of Oklahoma reciting chants that were quite explicitly racist. The reaction from university and other authorities was swift and immediate, with the President of the University, former Senator David Boren, rescindeing the fraternity’s charter and ordering its members to vacate the fraternity house by the end of the day on Monday. Additionally, the head of the national fraternity quickly came forward to condemn the local chapter and rescind whatever remained of its links to the national organization. Then, yesterday, two of the students that participated in the video were summarily expelled from the university, with the possibility that a similar fate could befall other students in the coming days and weeks:
Two University of Oklahoma students who led the singing of a racist chant that was recorded and posted to social media have been expelled.
The students “created a hostile learning environment for others,” a statement from the university read.
University president David Boren made the announcement in a tweetwhich included a link to a larger statement detailing his reasoning.
The video of the chant has caused a national outcry in recent days.
The video was posted online by a black student group and showed members of the Sigma Alpha Epsilon fraternity singing racist chants that said a black person would never be allowed to join the fraternity.
It also used a racial slur and referred to lynchings.
Mr Boren said that the investigation into the students seen in the video is ongoing, and said: “Once their identities have been confirmed, they will be subject to appropriate disciplinary action.”
Eugene Volokh notes, though, that there is a fairly compelling argument that expelling students from a public university solely because of the content of their speech is most likely no permissible under the First Amendment:
First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993). (I set aside the separate question of student speech that is evaluated as part of coursework or class participation, which necessarily must be evaluated based on its content; this speech clearly doesn’t qualify.)
UPDATE: The university president wrote that the students are being expelled for “your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” But there is no First Amendment exception for racist speech, or exclusionary speech, or — as the cases I mentioned above — for speech by university students that “has created a hostile educational environment for others.”
2. Likewise, speech doesn’t lose its constitutional protection just because it refers to violence — “You can hang him from a tree,” “the capitalists will be the first ones up against the wall when the revolution comes,” “by any means necessary” with pictures of guns, “apostates from Islam should be killed.”
3. To be sure, in specific situations, such speech might fall within a First Amendment exception. One example is if it is likely to be perceived as a “true threat” of violence (e.g., saying “apostates from Islam will be killed” or “we’ll hang you from a tree” to a particular person who will likely perceive it as expressing the speaker’s intention to kill him); but that’s not the situation here, where the speech wouldn’t have been taken by any listener as a threat against him or her. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the “hang him from a tree” is, neither of these exceptions are applicable here, either.
In a follow-up post, Volokh discusses in further depth the kind of speech that might authorize a public university to expel students, and the basic answer is that it would have to constitute speech that constitutes direct threats of violence against others, whether that be other students, faculty members and employees of the university, or simply members of the general public. While the chant that the SAE fraternity brothers were recorded saying is certainly highly offensive and most assuredly racist, it cannot be reasonably interpreted as being a threat of violence. Additionally, as Volokh notes, there is no exception to the First Amendment for so-called “hate speech,” even in a university setting. Given that, and most especially given the summary nature of the the way in which these two students were expelled, it seems quite apparent that the expulsion of these two students based solely on the content of their speech, and as Volokh notes it’s clear from Boren’s comments yesterday that this was the sole basis for his decision, raises serious First Amendment issues.
The reasons for this protection would seem to me to be rather obvious. If students can be expelled for “offensive” speech generally, then what’s to stop that rule from being applied to students to express unpopular political opinions or who are critical of some of the ideas advanced by the advocates of political correctness when it comes to issues regarding gender, race, and religion? If the University of Oklahoma were a private university, this wouldn’t be an issue since the First Amendment would not apply to its decision making process. However, as a public institution it is bound by the Constitution as much as any other entity run by the state, and that means that it can’t punish people solely based on the content of their speech.
As Volokh notes, this doesn’t mean that other actions that the university has taken in response to this video are impermissible. Rescinding the fraternity’s charter, for example, seems to be clearly within the discretion of the university since fraternities and sororities generally operate on campus at the pleasure of the administration to begin with. Additionally, one imagines that the students could be barred from certain extra-curricular activities based on what they’ve done here. When it comes to the expulsion, though, it seems fairly clear that the First Amendment, properly understood, means that University of Oklahoma has crossed a line. I have no idea if the students involved in this matter will try to challenge their expulsion in Court, but if they do then it seems fairly obvious that they would have a strong case and that the university should probably think about offering a settlement rather than fighting a battle that they’d be likely to lose.
Yep. Free speech isn’t just for the speech we like.
The question I’m more interested in with respect to this story is whether costing the state the millions in damages that will be awarded to the ex-students following a civil trial will be grounds for termination of the university president, other administrators, and, potentially, faculty members?
I’m sure the university will gladly pay the settlement. This was a warning for the thousands of other students who sing similar songs. Don’t record yourself, ever. You’re hurting our brand.
I don’t know where the line is to be frank. Of course the government cannot arrest them for hate-filled speech like this, but I feel like the university is free to set policies that allow students personal safety. This is not merely a disagreement over political or policy issues between students.
I don’t see where the students’ safety is involved here. If the students in questions would have lead a mob singing the chant across campus, you could make an argument for inciting violence. Singing on a bus full of fellow bigots is not usually an immediate danger to anyone else.
With this argument you could banish the next Baptist preacher from campus for damming half the population to hell in a sermon at his off-campus church, half the speakers on immigration issues would fall under that category, ditto for those on SSM.
But you can’t hold a whole fraternity responsible for the behavior of a few, sick twisted individuals! For if you do, then shouldn’t we blame the whole fraternity system? And if the whole fraternity system is guilty, then isn’t this an indictment of our educational institutions in general? I put it to you, Doug – isn’t this an indictment of our entire American society? Well, you can do whatever you want to, but I’m not going to sit here and listen to you badmouth the United States of America….
@Tony W:
Of course they’re free to do that, but it has to address actions that actually threaten personal safety. Bigots singing a bigoted song in private, one that they’ve probably sung dozens if not hundreds of times before, doesn’t rise to that level.
@Rafer Janders:
Was it over when the Germans bombed Pear Harbor?
I know. Forget it; you’re on a roll.
@Rafer Janders:
I agree with you, but I have to say,if I was a black student at OU and in a class with a bunch of bros in fraternity caps, I wouldn’t feel threatened, but I wouldn’t exactly feel not threatened.
@Modulo Myself:
All colleges and universities are now marketing themselves 24/7 – they’re competing for students, for talented faculty, and for millions of dollars in research grants and contracts, so yes, “branding” is very important.
I’ve seen news stories regarding the two kids expelled. One kid released a statement apologizing, and the other’s parents released a statement. So far, it looks like the kids’ parents are really, really pissed with their offspring. I would not be surprised if the parents tell their kids to accept the expulsion.
Take the students back in, but suspend all their extracurricular privileges and disband the fraternity, I say. And if they even cough near a black student, subject them to disciplinary measures. They’ll soon leave on their own.
@michael reynolds:
Agreed… but free speech is not without consequences.
A great article here: http://www.heritage.org/research/reports/2014/12/true-threats-and-the-limits-of-first-amendment-protection
In this case: hanging a ni##er from a tree” is both an objective and subjective threat.
Once could argue: Is it a threat if there was no perceived victim of the threat present? (ie: no blacks on bus)
What may be the only shining star of this whole story: the threat was perceived as a threat by others on the bus. In other words, victims of a racist threat no longer need to be of a minority to recognize that threat. To use the term of the quoted article: the “reasonable people” perceived the threats for what they were, and they took action.
Short term: Those expelled will try to make this all go away… good luck with that.
Long Term: The fraternity will be reinstated, as it is unconstitutional to punish a group over the actions a subset of that group.
@JWH: I’d have been more impressed with the statements from the kids and parents had they not sounded so professional. Smells like they’ve brought in lawyers and/or PR people. I wouldn’t be surprised to see this develop into a full blown case of affluenza.
“While the chant that the SAE fraternity brothers were recorded saying is certainly highly offensive and most assuredly racist, it cannot be reasonably interpreted as being a threat of violence.”
“You can hang him from a tree” can’t be reasonably interpreted as being a threat of violence? It’s a specific invitation to lynching. I’m asking a sincere question and fwiw I generally disagrees with prosecuting vague speech that is interpreted as making “terroristic threats” or some such — which regrettably happens all the time.
@Liberal Capitalist:
I agree there can and should be consequences for this kind of speech, but the consequences should be social not legal. I’m reluctant to destroy some guy’s life just because he was a creep in college. I want to convince him, seduce him to the light side of The Force. This is already going to follow these guys forever.
@Rafer Janders: +1 for the Animal House reference
https://www.youtube.com/watch?v=ROxvT8KKdFw
@Brendan Miller: You can’t go down that road. It’s just too much of a stretch. They weren’t threatening violence to anyone, they were just being racist jerks.
I have two issues with the expulsions, as they were done. First, there was no due process before the expulsion was handed down. Instead, they are told that they can appeal it after the fact. Not sure that’s a good idea if other students are disciplined only after a hearing of some sort. There was no rush to expel them and plenty of time for a hearing of some sort to occur. Second, as Doug and so many other attorneys have noted, the First Amendment argument. OU is a state school and, as such, operates as an agent of the state.
Even if the First Amendment wasn’t an issue, how can the school control the actions of students off campus? They weren’t on campus when the event occurred nor were they at a school sponsored event.
Saying all that, those students probably wouldn’t have voluntarily come back anyway. They are pariahs on campus now. Heck, they’re pariahs on any campus now. If Boren had waited, that particular problem was going to take care of itself, without opening the University to a possible lawsuit.
@michael reynolds:
But that… by definition… is “consequences”, right?
There are many acts that are hateful, threatening… or outright stupid. Or those that can be perceived of a flaw of personality (drunk driving, etc).
However, we all face the same potential options of consequences. Perceived consequences are what keeps the whole world interacting.
Will this kid(s) life be destroyed? My uninformed opinion is: Not likely. There is a hint of affluenza here that will likely make it all better for them as life continues.
If they were a%%holes… well, they just have to face the music.
As one familiar with courts, jail and consequences… they may feel that everything that they know has been destroyed, and they may be inconsolable over it right now… but time moves on.
Now if we look at the ongoing racism that the US has been struggling with, the slap on the wrist that these kids have received pales in comparison to the daily racism that continues to occur in the USA .
yeah… I guess I feel strongly about this.
Fu(% ’em. Let ’em dangle from a tree and spin in the media wind for a while.
Maybe they are one of the continued moral lessons that the USA needs to continue to receive.
Even though politicians hate hypotheticals, the question for the University of Oklahoma and its President David Boren is: What could the Brothers of Omega Psi Phi, the sisters of Delta Sigma Theta, or the members of the football chant that could be considered as creating a hostile environment and get them run off of campus within two days.
President Boren has created, without thinking about it, a situation where some students are going to be held to different standards of speech based upon race. And I doubt that such a standard will survive any kind of legal challenge.
@Liberal Capitalist:
Something fundamental has changed in the last decade: nothing ever goes away. The Google can follow you forever. This kid can be up for a job 30 years from now and have this video show up. He can run for office and have this video show up. When his daughter gets engaged her prospective in-laws can turn this up. And as bad as it is now, it’s not going to get less bad in the future.
Was the speech in violation of the universities code of student conduct?
1) Personally I think it’s a fine line here with the references to lynching. How do the exceptions to the 1st amendment work? If you were a black man walking alone through campus at night and you knew those same frat boys were nearby, I’m thinking you would feel a bit threatened. Yes, with violence. How direct does the threat have to be? Does only the speaker’s intention matter? Or does it matter how other people react?
2) That said, I’m in agreement with Reynolds. It would actually be better to educate these idiots (on racial history) rather than expel them.
@gVOR08: I’m not sure how I’d react if my kids did this. I think I’d be tempted to say, “Well, you’re my kid, so I’m willing to give you shelter and protection from physical threats and such. But you’re also an adult, and you screwed up royally. Have fun handling the legal and social fallout.”
The SAE choirboys weren’t just articulating hostile views toward blacks, but they were specifically stating that their membership practices specifically discriminate against African-Americans.
There is already case law that establishes that college fraternities do not qualify for the “intimate association” exception, so they cannot legally discriminate in that fashion.
It’s one thing to think bad thoughts about minorities — those are undoubtedly protected. It’s quite another to turn those ideas into practice — bad acts are most certainly not protected. There is a difference between stating that “I believe that we should have the right to discriminate” and proclaiming that “we are proud to discriminate and we will continue to do so.”
@michael reynolds:
So what’s the problem here, then? Expulsion from college seems like a perfect example of “social not legal”. The students are not under arrest for alleged crimes, and they are not being sued for civil damages (at least, not by the University of Oklahoma).
That’s also why I don’t get all of the heated invocation of the First Amendment here. The First Amendment applies to laws abridging the freedom of speech, which this is not.
(I’m also curious to know whether the U of O has a code of student conduct that applies. Expelling students for violating the published code of conduct would be even less of a First Amendment question.)
@michael reynolds:
And does this new lack of privacy affect only them? Are they the only individual who have been recorded being a##holes?
No. Absolutely not.
While this “new” lack of privacy and the internet’s long memory may be shocking to us… for someone in their late teens / early 20’s… this has always been their reality.
Racism needs to be unlearned. That process will not be easy. And some, like these kids will pay a personal burden.
As Suzanne Vega said: “What price to pay for bad wisdom”, eh?
Now, as the story continues, we will see (in the longest view) their moral character… will they rise from the ashes and find a way to make this better… or will they end it.
Yep. Cold.
Just like their cheery song inferring their superiority though team building by hanging ni55ers from a tree.
@DrDaveT:
Try looking at how this can be (ab)used the other way. Imagine that the University President was a hard-core Conservative (the kind that makes JJ, Doug, and myself shudder) and Liberals were protesting on campus.
By this logic, he would have the right to expel them all — by definition, Political Protests create a “hostile learning environment for others” (“others” being those who disagree with the protesters).
As a public university, the Administration needs to be bound by the Constitution — even (or, perhaps, especially) when it’s uncomfortable or offensive. If this were Brigham Young or Notre Dame, then they would be well within their legal rights.
@John D’Geek:
There is a limit on what Notre Dame or BYU can do since they are considered public accommodations. Also, since both universities accept federal aid, there is a long list of regulations that they have to follow.
Serious question for the lawyers. If a state university has a code of behavior for students that forbids this kind of speech, and by attending students implicitly/explicitly accept that code, could they then be expelled for violating the code rather than for hate speech per se? Would the 1st Amendment make such an agreement illegal and unenforceable?
Steve
@Moderate Mom:
Hmmm…
racism – noun rac·ism \ˈrā-ˌsi-zəm – poor treatment of or violence against people because of their race.
So: are you implying that being a “racist jerk” is not a threat?
Which racism is OK with you?
* Crossing the street because someone of another race is walking toward you?
* Having confederate flags waving off the back of a pickup truck, driving through a southern city?
* Chanting that you can hang people from a tree?
* Restricting clubs or neighborhood?
* Eliminating millions based on race or religion?
.
So: Which racism is OK with you?
@liberal capitalist:
It’s the modern day equivalent of the village stocks. And it doesn’t punish people for being bad, it punishes people for being non-conformist:
How One Stupid Tweet Blew Up Justine Sacco’s Life
@Liberal Capitalist:
We have to differentiate between speech and action. And between speech and threat. And I believe we need to err on the side of liberty (sorry, that sounds grandiose). I do not want to go down the road of criminalizing free speech, even obnoxious free speech. Their freedom is my freedom.
@John D’Geek:
The frat boys weren’t merely “protesting”; they were boasting of their organization’s discrimination policy. And that discrimination is not constitutionally protected.
@michael reynolds: I wonder … might the opposite happen? If we end up in a world where your mistakes live on Google forever, then we could end up in a world where virtually everyone has one or two mistakes lurking on Google. It might become the new normal.
To be clear I find the behavior of SAE offensive and obnoxious. If they worked for a company I owned I would fire them.
That said, the First Amendment is specifically designed to protect unpopular speech. Popular speech does not need protection. While their song is without question offensive, it is speech.
The answer to offensive and obnoxious speech is not censorship — it is MORE speech. The guys singing this song are entitled to hold views which most people (present company included) find profoundly offensive.
There’s another potential Constitutional problem here.
Don’t forget the students were summarily expelled. There was no hearing involved.
That most likely violates a thing called “Due Process.” That clause also covers the actions a state university can take.
@Liberal Capitalist:
You include crossing the street to avoid someone in the same category as the Nazi Holocaust?
You really need a sense of proportion.
Well, if this expulsion stands, it won’t belong till there is a demand from other groups for expulsions due to speech. Say someone is singing along with one of the many rap songs on the “kill whites” theme? Or some feminist calls for violence against men? Or the campus anti-Israel group calls for violence against Jews?
If the university demurs from taking action, they are creating a hostile environment and discriminating.
@DrDaveT:
Punishment for speech (in this case, expulsion) constitutes abridgement of speech when done by a government entity.
That includes a state university.
And “Codes of Conduct” must comply with Constitutional limits. That means the university can not have a speech code.
@michael reynolds:
We are not in disagreement.
I absolutely believe in free speech, even that which is grossly offensive.
And I believe in the legitimacy of protest actions, even those that may break laws.
However, much like the 1960’s when individuals chose to break laws to protest inequality… they knew and accepted the consequences of breaking those laws.
These young men chose to state their discrimination policies in song. And in their social environment, they crossed the line. and they were punished by that organization in a very trivial manner. (expulsion from that institution).
They are free to be, work, learn… just not there.
There are limits to speech. The supreme court has ruled that there are already limits. these guys crossed it though threat and institutionalized racism restricting membership.
And, as I said before, there are consequences.
Much as the idea of free market libertarianism is not a functional idea, neither is a liberal utopia of personal freedoms. Seduction by the light side of “the force”… just won’t work with some.
It will take an a55 kicking.
@Franklin:
For it not to fall under First Amendment protections, the threat has to be fairly direct, oriented as to a specific person in a place and time and with a credible means of delivery.
“Let’s kill all the Internet commenters!” is not a direct threat, even if you belong to that group. “I’m going to kill you, Franklin, right now” is a direct threat.
@JWH:
I’ve actually made a version of that argument as relates to privacy and surveillance. Privacy is leverage. It allows you to pillory someone who may be doing exactly what you’re doing, say, looking at porn or getting publicly drunk. If everyone’s sins are on display we must move beyond hypocrisy and the hypocrite’s leverage is gone.
I don’t think anyone gets through life without doing or saying something spectacularly stupid and offensive. I would not want my late teens and twenties on YouTube. But, if everyone else’s are, then what the hell, I’ll have plenty of company.
I think that’s where we’ve already started to head, actually. You see people much more open about porn, sex, etc…
@Brendan Miller:
No, because it is not a threat to any specific person or distinct persons. Which we know because these idiots have probably song this sung dozens if not hundreds of times before, and haven’t lynched anyone afterwards.The very fact that it was commonplace behavior for them, and that they did it in private specifically where no one could even hear it to be threatened, indicates it wasn’t a threat of violence, no matter how otherwise disgusting it was.
No, it’s blowhardism and bigotry, not a specific threat. “Hang John Smith who’s standing right there from a tree right now” is, by contrast, a specifici invitation to a lynching.
I don’t know “hang them from a tree” sounds like a threat of violence to me. That is the part that was most offensive to me and it seems to ignored in much of the coverage.
@michael reynolds: ” He can run for office and have this video show up. ”
And if he’s running in Alabama, he’ll become chief justice of the state supreme court, if not governor.
@DrDaveT:
If you’re expelled from a school because of your speech, then your speech has been abridged. If this was a private university, of course, then the First Amendment wouldn’t be at issue because there would be no government action. But OU is a public university, part of the apparatus of the state government of Oklahoma, and therefore this implicates First Amendment concerns, since an arm of the Oklahoma government took action against a person for the content of that person’s speech.
@Liberal Capitalist:
Yes. By itself, the mere act of being a racist jerk is not a threat. In order to be a threat, you actually have to threaten to take, or take, specific targeted action against a distinct person or persons in some bounded place or time.
@FredW:
Considering that they were singing this in private, and the very last thing they wanted was for this to become public for people to realize how loathesome they were, then how is it a threat? It’s a funny sort of threat that you don’t want the person or persons threatened to find out about….
Does the university have a history of expelling people who use language like this and sing racist songs, or is this policy reserved only for those which go viral on the Internet?
@David Addams:
Personally, I provided many different examples of racism… all of which I find as an affront. I did not imply their equality… but they do share a root source.
And, I did not specify the holocaust… racism has resulted in millions dead, in various situations.
For example: There is an estimate that 3,300,000 non-whites died in some sort of socioeconomic race-related cause in the USA from 1900-1970
source: http://necrometrics.com/all20c.htm
Colonialism killed 10 million
Rwanda killed nearly a million. Afghani tribalism, over a million as well
source: http://www.soundvision.com/info/racism/statistics.asp
With 6 billion on the planet, we’re going to have to deal with racism.
Even if it means ejecting a few kids from college.
I make my living in media – Film and Television to be precise. I’ve seen what social media has meant to my business.
I don’t Facebook. No account.
I don’t tweet. No account
I don’t Instagram. No account.
I don’t Pinterest. No account.
I don’t tumblr. No account.
I don’t allow myself to be photographed, if possible.
I don’t allow anyone I know to post photos of me online, no matter how innocent.
My wife doesn’t acknowledge me on any of her social media sites.
I don’t exist to my friends on social media. I’m not tagged, friended, or pinned by any of them because I have an almost zero online presence.
By choice.
Why?
Because the internet is forever.
It’s that simple. These kids were assholes. It’s going to follow them forever. I’m sorry about that. But you don’t get to represent a college and be an asshole. Especially not a racist asshole.
Free-Speech? Right. They have every right to be racist assholes. But doesn’t mean there aren’t repercussions.
@FredW:
Awww… c’mon! wadda ya mean ??11??!!
For those who see this as an affront to white privilege, they were prolly just singing about drying their laundry.
How can you infer, based on the US history of equality, liberty, justice and freedom-for-all that this little ditty would be hate speech:
How dare you say it would threaten anyone!!??!!
Next, they’ll take away “99 bottles of beer on the wall as a bus-time-killing song!
harrumph !!
.
Seriously… people should stop trying to defend this. it’s embarrassing.
.
@EddieInCA: Of course, your lack of presence is suspicious. What are you hiding?
That’s why I generate innocuous, slightly obsessive amounts of crap. Instagram that lunch, tweet that completely random article about science, befriend people on Facebook and like their birthdays or their cats.
And I hide everything else. But, with thousands of pictures of cute animals, and identical meals at the same restaurant, it’s not obvious I am hiding anything.
@EddieInCA: 90% of me thinks you are smart. 10% of me thinks you are paranoid.
My girlfriend has no social media presence either because she is convinced that somehow it will come back to bite her in the future. I don’t entirely understand her reasoning, but she is adamant that nothing good can come from it.
“Constitutional” : I thought about that the minute it showed the university president out there with the bullhorn kicking the fraternity and students out. I figured then that the university must have some sort of due process: student court or something. As far as the fraternity, that would be kind of like kicking out the University Teachers Association for the actions of a few instructors.
Fraternities ? Do they serve a worthwhile purpose anymore ? Are they a relic of ivy league glory years of the ’30’s ? We have the “Animal House” image of constant drunkenness and other misbehaviors. Maybe it is time to rethink their place at a college. At the least, drinking should not be allowed on any campus.
Many posters here seem to have a problem distinguishing between the right to free expression and the illegality of discrimination
OU is a public university. The university is obliged to follow the provisions of the Civil Rights Act that prohibit racial discrimination.
OU also goes to great lengths to affiliate with fraternities on its campus — not only does it tolerate them, but the university actively cooperates with them and assists them with their promotion and administration.
Now there is video evidence that members of one of these groups actively discriminate against minorities and intend to continue. As noted, there is case law that finds that the “intimate association” exception of the Civil Rights Act that protects the rights of some social clubs to discriminate does not necessarily apply to college fraternities.
If the university failed to act, then it would be setting itself up for a lawsuit. By failing to act, it would be promoting a hostile environment that actively encourages discrimination — one cannot ignore evidence right under their noses and then feign plausible deniability.
If anything, the university has not done enough. It should immediately launch an inquiry to investigate the membership and recruitment policies of all of these Greek organizations to see whether they also discriminate.
This is not the equivalent of a political club or underground newspaper articulating unpopular views. This group raised the stakes by turning their personal views into membership policy.
@Rafer Janders:
OK, your rules… let’s look at that:
“There will never be a ni55er SAE/There will never be a ni55er SAE/You can hang him from a tree/But he’ll never sign with me/There will never be a ni55er SAE.”
1) threaten to take or take – clearly, the song implies that black membership is being prohibited. The right of these individuals are being denied, and in that also the socioeconomic benefits of the relationships that should be fostered in this type of institution.
Now one could aregue if there are really such socioeconomic benefits… but clearly there must be, or these institutions would not exist.
2) Specific target action – denial of membership, with the threat of historical lynching
3) against a person or persons – Blacks, as a broad class
4) in some bounded place – at the SAE
5) or time – the timeframe was NEVER, excluding them, based on race, forever.
So: By your definition… it matches a threat.
@Liberal Capitalist:
Yes, but in this case, there was nobody in the vicinity being threatened. We’re not going to penalize, by force of law, private utterances are we?
“The right of these individuals are being denied, and in that also the socioeconomic benefits of the relationships that should be fostered in this type of institution.”
Private clubs are just that, private. They’re not public accomodations They can discriminate if they wish. In other words, they have a perfect right to be a bigotted bunch of aholes is they wish.
@Liberal Capitalist:
It is unlikely the fraternity will be reinstated. The National Council for SAE has already revoked their charter (and there are no first amendment protections for that–the National Council can revoke a fraternity’s charter at will).
Any Greek House needs a national charter as well as a charter with the specific university where it is housed. There are also no protections or requirements for a university to accept a fraternity’s charter (though this second one could be targeted on a discrimination suit, I doubt it would win in this case. OU could easily point to all of its other mostly-White frats).
@sam:
No, only some social clubs are eligible for the “intimate association” exception. As I noted above, there is case law that finds that fraternities do not qualify — their membership criteria are too broad.
I don’t have a problem with the punishment of the fraternity, or the fraternity punishing the students (assuming slightly different circumstances), but I don’t think an expulsion from a State University should be legal (or the right thing to do).
I expected to see hyperbolic slippery slope arguments in favor of an overly broad application of the 1A. I wasn’t disappointed, although it is a little amusing to see them coming from the other side of the political aisle.
Schools are well within their 1A limitations when they:
1) Limit speech based on a reasonable expectation that it will cause a material and substantial disruption of school activities or invade the rights of others, or;
2) Prohibit obscene or vulgar language
I haven’t read OU’s code of conduct or its policy statements regarding student behavior, but given the close to 30 years they’ve had to get those regulations in compliance with rulings like Bethel, there is a good chance they are on sound legal ground with respect to the verbiage.
This is obviously in addition to the threat limitations discussed above.
Given the notoriety that this mess has garnered, I doubt that these two students will be returning and I doubt that they’ll be seeking to sue the school, so this is probably a non-starter to begin with.
Doug, I do appreciate the title of your piece: “probably isn’t” is a much more considered term than “NOT” or simply “UNCONSTITUTIONAL” that I’m seeing in other outlets. The protections afforded and potential repercussions are not automatically straightforward. Otherwise, lawyers would have so much less to do. 🙂
Full disclosure: I’m an OU alum (’93), and I still have friends in the area. Regardless of the constitutionality, which is debatable, it doesn’t sound like (at least not at the moment) the students or their parents are going to challenge the expulsion on first amendment grounds. If that changed, I’d expect an amicus brief from the ACLU in support of the students’ return.
@sam:
That was discussed in my post.
1) First, the racism of the comment was a threat that others on the bus found offensive and threatening. THEY are the ones that took action, in recording and posting the behavior.
You no longer need to be a specific infringed minority to be threatened and enraged by racism. I’m an example: I’m over 50, and a white guy, and this really pisses me off. I would have done the same in posting and exposing this unacceptable behavior.
2) Second, this wasn’t private. If someone was in a locked in a home where the concept of privacy existed, then they (in their closed room) can carry on in any way they wish, with the belief of privacy and the expected protections that it implies. As long as they are not harming others.
But this was on a bus, on a social event, and the fellow was leading the song, cheering others on to join him. While the event was exclusionary, no privacy implied.
If you think differently, ask the last presidential candidate about his 47% comment and the concept of privacy.
@Lib Cap:
If by “threat” you mean a threat not to offer membership in a private college fraternity, then sure.
If by “threat” you mean the way that it’s understood in plain English and in First Amendment jurisprudence as an area where it is acceptable for the government to impinge on free speech, then no. Because no credible threat of violence against a person or persons.
@liberal capitalist:
We don’t even really need to explore the potential threat aspects of the scenario, IMO.
Quoting Bethel School District v. Fraser, 478 U.S. 675 (1986):
Bethel concerned secondary eduation, but I think a reasoned argument can be made that it’s equally applicable to public universities as well. The deciding factors would include the verbiage of the university’s code of student conduct and its policy regulations, as mentioned above.
Now, call me crazy if you like, but n**gger, IMO, certainly fits into that line of reasoning.
@HarvardLaw92: Noah Feldman presents a similar argument: http://www.bloombergview.com/articles/2015-03-11/oklahoma-s-right-to-expel-frat-boys
It’s absolutely not equally applicable. There are very many distinctions between secondary schools and public universities, not the least of which is that high school students are largely minors, with the high school acting in loco parentis during the school day, while college students are adults. You really have to find a case involving college students in particular to be on point.
@JKB:
Um…no. This is not really a thing except in your fevered imagination.
@HarvardLaw92: “vulgar and offensive” would also include cursing, lewd and dirty jokes, and any sort of lewd acts, art work, even literature. This would extend to all areas and activities including athletic events.
@Rafer Janders:
LOL, no, I really don’t. As far as I’m concerned, the university’s interest in maintaining an orderly environment conducive to meeting its primary function AND its obligations under federal law to ensure that students are provided with a learning environment free from hostility based on race or sex more than satisfy its constitutional burden with respect to policies that permit the expulsion of students whose conduct hinders those permissible goals.
You’re, of course, free to represent them in the event that they decide to sue.
But I think both of know that they won’t …
@Tyrell:
Yup, with the caveat that it’s a case by case evaluation and I don’t, as a matter of policy, ever entertain slippery slope arguments.
Bethel directly concerned a student who made the regrettable decision to use sexually suggestive language while addressing the school body at an assembly. He got suspended as a result. SCOTUS upheld the suspension.
@michael reynolds:
Such is the cost of “Free”
So if I am taking an exam at OU and I decide to exercise my freedom of speech and I start by saying the answer to question 1 is “D” , question 2 is “False” etc. what grounds would they have for stopping me?
I know its a silly question, but no sillier than defending these idiots “right to free speech”.
I am sure that OU has a code against giving answers as “cheating”, just as they have a code that says hanging a nigger from a tree and denying said nigger membership into their frat as “discriminating”.
(and yes, Rafer, before you ask, I specifically injected limitations on content-based speech, which realistically doesn’t apply to the university’s actions here to begin with and which goes nowhere happy, in order to lead the discussion to limitations on content-neutral speech – which does apply and which gives them a broad assertion of permissibility).
I do that sometimes. Sue me 😀
Off topic, but I would just like to vent about the auto-playing video ad on the front page.
Thank you.
@jewelbomb:
There were. 20 years ago. Involving mostly minor, already-forgotten rappers. But it’s always 20 years ago for conservatives. Except when it’s 155 years ago.
@Steve V:
That pushed me to ad block. I hate blocking ads for a page I support, but that was too much.
@superdestroyer:
Caveat: IANAL.
Pretty sure that’s not true. They are both private universities with the right to limit access to their campuses. They are also both religious universities with religious restrictions. In the case of BYU, for instance, students can get kicked out for violating grooming standards or any sort of sex outside of marriage. You get in trouble for having a member of the opposite gender in your room; do it a few times and you will be kicked out — weather you’re having sex or not. (Not an exhaustive list).
One young woman was famously kicked out for appearing in an MTV show.
These are things that public universities can’t get away with even if they wanted to.
@Pch101:
First, for the record, I agree with Michael Reynolds & Co. on this one. (I seem to be doing that a lot lately). I won’t bother rehashing their arguments.
The point is not whether it’s protest or simple offensive speech. Yes it’s offensive, no I don’ t like it. But it was done on a bus, with a reasonable expectation of privacy.
Now, had the university immediately held a court, investigated discrimination and potential hate crimes, and then levied judgement we’d be talking about a different thing here. But that’s not what happened: the University President unilaterally decided to kick them off campus.
To put the original point a different way: NOW says a lot of things that are offensive to a large segment of society (Conservatives); many of these things provide a hostile environment to those that are in opposition to their policies. Does the University of Oklahoma have the right to kick NOW off campus — without so much as a hearing?
No.
Both forms of speech are offensive. Both forms of speech provide a hostile environment to a social subgroup. And if both forms of speech don’t contain hate/extreme anger, then things have changed greatly since I went to school. If you need more, see the most recent issue of the Chronicle of Higher Education (some articles available online).
What should have happened was an immediate hearing.The argument is strong — a full, proper investigation and trial would almost definitely have found just cause to expel them and kick the Frat off campus. But they didn’t do that — they just kicked them out. As it is, the only reason for expulsion was “we don’t like what they said”. That’s not Justice; that’s not “Rule of Law”.
That’s Tyranny.
@Stormy Dragon:
Bad example. Excerpt from the article:
Justine Sacco made a completely tasteless remark and got fired for it (Head of Global Communications, should have known better….). Now she’s “confused and traumatized” and we’re expected to feel pity for her, the same pity she didn’t have when she opened her mouth in the first place. Reality has smacked these people in the face and they are so so sorry…. sorry they ruined their lives. They weren’t being “non-conformist”; they were being rude, disrespectful and cruel and are shocked, SHOCKED that the world was cruel right back. The world is not a nice place, Justine – you were part of the system that made it that way.
There’s a word for this: karma. Karma lingers, karma is past and future. Karma doesn’t just magically go away when everyone forgets, karma is with you till you die and beyond. It’s a social concept as well as a religious one – the stench of bad deeds clings and yes, people can smell you. Nothing’s changed in that aspect except the Internet has given us Instant Karma, now with better documentation. Think first, have nothing to regret later on.
@John D’Geek: Reverse the situation for a moment. Would there be legal grounds to expel black students for chanting, “Kill Whitey”?
@Rafer Janders:
I get that. What I don’t get is the chain that starts at “Congress shall make no law […] abridging free speech” to “The University of Oklahoma may not expel students whose behavior fails to meet the university’s established standards of conduct”. I assume that this is some historical construal slippery slope along the lines of “Well, he probably didn’t mean just cheesemakers, it’s a metaphor for all the dairy industries” (a la Life of Brian), but it’s sure not obvious from the language of the Bill of Rights.
To belabor the obvious, government organizations — even the federal government — can discipline or fire people for all kinds of speech. If a typical low-level fed walks into his boss’s office and goes off on an obscenity-laded diatribe about her personal habits, he’s toast — even if it was all delivered in a perfectly mild tone and with no implied physical threat. I’m not seeing how this is somehow more protected by the First Amendment than those cases are.
@John D’Geek:
Not really. The courts have been relatively clear that misconduct off-campus at a school sponsored function (functions held by private groups which are sanctioned by the university are considered to be school functions) can be held to the same standards as if it occurred in the middle of campus.
This is why fraternities can still be sanctioned by school officials for violating policy for behavior that occurs in off-campus fraternity houses.
@John425:
Um…yes! There absolutely would be! That too would be contributing to a hostile environment and the University would have an obligation to protect its environment by enforcing it’s code of conduct which very likely has language speaking to those types of issues.
And for those that argue it was meant to be private – all that matter now is the fact that it got out.
@John D’Geek:
No, that’s hyperbole. North Korea is tyranny. This doesn’t even come close …
@David Addams:
No. The university’s Student Rights and Responsibilities Code provides for direct administrative action (i.e. immediate expulsion, among others) based on the discretionary judgement of university officials that such immediate action is warranted.
The affected student(s) have the right to appeal this action in a hearing, seeking to have it reversed, but the hearing itself is not required as a precondition to expulsion.
The hearing satisfies due process requirements.
@Tony W: it’s a public university- and a 2 way street unfortunately. “racism” is being way overplayed these days.
@James P: I don’t have much of a social media presence–don’t facebook, twitter, linkedin, etc. I do have an account at a reunion type site, but haven’t visited it in years–too expensive for small benefit., but that account is probably the extent of my presence in social media. Main reason? My real life is busy and conplicated enough that a virtual one seems superfluous.
@KM:
Tough words for someone hiding behind a pseudonym. And did you bother to read the whole article? Because it wasn’t about just about Sacco. How about Adria Richards? Was she getting “karma” too?
I find the entire university quasi-legal justice system and rules of conduct somewhat bothersome. In fact, I find them wrong, but rank them pretty low in the wrongs of the world.
Here, the university didn’t even bother to follow their quasi-legal justice system. There was no due process, no chance for the accused to state their case, just summary judgement.
And, on another board, I am arguing with people about the University of Oregon’s handling of a rape case. And I lump them together, with the sad horror that these are lumped together, handled with the same incompetence.
I get it — kids do stupid things, and we should treat them with kid gloves, push them towards being better people, and giving them harsh lessons when needed.
And that makes sense for something like this — but the response is absolutely crazy, and outside of the defined process. Meanwhile, rapists on campus get more due process, and I have no idea why they aren’t just turned over to the police and the university justice system sticks to kids doing stupid things.
I’m not sure I have a point to this. Just WTF.
“My way or the highway !” It sounds like this is a no nonsense guy who knows how to get things done . That is called leadership.
@John D’Geek:
If BYU tried to claim that ti would not admit blacks for religious reasons, it would immeidately lose its access to federal student aid, federal research grants, and its tax exempt status. Look up Bob Jones University
From cite:
Being private does not exempt a university from all regulations.
Also, it is the hook of federal money that limits what a university can do. cite
Somehow I suspect that any university that tried to force all of its students to be Democrats, conservatives, or anything else would quickly find itself on the losing side of multiple lawsuits.
@Stormy Dragon:
Not a pseudonym, my actual initials – ironic criticism from someone calling themselves Stormy Dragon. Practice what you preach. I’ve posted mine before, as have people like Micheal. What’s your name, then? Why are you so mad, anyways? I just pointed out a flaw in your logic – it’s not like it was personal attack.
I did read the article and my point about it being a bad example stands. You know who threatened her and ruined her life?
Your argument is based off extreme haters the likes of the KKK screaming at a woman and your conclusion is she’s being punished for “non-conformance”? They threatened because she was a WOMAN and they would have done it even without the photo. She was subject to sexism and bigotry, not the Internet socially punishing someone off the beaten path. I don’t doubt the Internet has plenty of examples of your point – these aren’t them. I never said your point isn’t valid – I’m saying you’re using poor examples since these are people who are being subjected to garden-variety hatred. A better illustration of your point of “non–conformance” would be someone who lost their job and had their lives ruined because they posted Kabuki furry photos from the subway and the Internet lost it.
The thing about karma people who only know it as a buzzword miss is that sometimes you didn’t do anything to earn it in this lifetime. Circumstances out of your control before your birth make for the situation you are in now. Karma is being born as a slug or a king, being rich or poor, being gifted or no. The point was you’re supposed to take the hand you’re dealt and do the best you can with it, even if it’s a crappy one. It remains an appropriate word since karma, like life, isn’t fair – it just is. You can generate some good karma but that doesn’t mean you’re not stuck with the bad.
Dear Doug,
Please go back to Law School and realize that the US Constitution is about what the Federal Government is charged with doing and the 10 Amendments is about what the Federal Government can’t do to us.
Yes, under the Incorporation Doctrine of the Bill of Rights, the Bill of Rights extends to the States, but to extend that to state schools in this situation is absurd.
I would contend that the expulsion isn’t a First Amendment issue, it is a due process issue. The student would have to claim his expulsion was done outside of the University’s rules and file a petition to redress that was ignored by the state before any Constitutional rights (i.e. 14th Amendment) would kick in. At that point, it would be up to the courts to decide if “swinging from a tree” (or whatever that line was) was sufficiently threatening. Until that happens, I don’t see any Constitutional issues.
What is this I don’t even
@Tyrell: I happened upon Boren while I was out for a jog one morning. He was out enjoying the weather too but at a slower pace. Anyway, I voiced a grievance over one of his decisions in passing. He instantly firmed up and said something like “no, no, no that was wrong”. I just say that to point out he is a leader that makes a decision and backs it up.
@KM:
In my case, it’s perfectly consistent with my arguing that the “internet mob” has too much power to destroy the lives of people who don’t conform.
Yes. She failed to conform with the way they wanted her to behave, so they destroyed her life. Which is my original point: the ability for people’s lives to be destroyed over internet messaging isn’t restricted to, as you seem to imagine, bad behavior. Any message, good or bad, that gets the attention of a sufficiently large group will render you unemployable.
You’re basically arguing for a world were only the independently wealthy can afford to speak their minds freely.
@bill:
Sure, I guess, that is until you call me anti-Semitic for criticizing the Christian right’s infatuation with our 51st state.
Because it’s a Public University, black people have the right to feel safe from threats of lynching there, and the government has a legitimate and compelling state interest in protecting them from those threats.
If one of the expelled asked for advice I’d tell him to forget right, wrong, and constitutional rights. I’d tell that he needs to get this behind him without the years of battle that a court case would entail. Register at a local community college as a part-time student, do a lot of volunteer work with Habitat for Humanity, and apply for reinstatement in two years. Do not become a martyr to the cause of constitutionally protected obnoxious speech.
Point 1: The most recent Supreme Court pronouncement on the First Amendment rights of students says that it is permissible to expel a student merely for wearing a “Bong Hits 4 Jesus” shirt at an off-campus school sponsored event (which, IIRC, consisted entirely of students standing by the road as the Olympic torch ran by). Based on that, I think it is perfectly constitutional to expel students for singing songs about lynching black people.
Point 2: I am completely unsurprised that I followed a link about a contorted constitutional defense of singing songs about lynching black people and found my way to Doug Mataconis’s site. It’s so … you.
@Gustopher: No, it looks like there IS due process in that the students can have a hearing after the expulsion. There is nothing in the Constitution that states you have to have a hearing before expulsion from a gov’t-affiliated entity in order to satisfy the Due Process clause of the Constitution.
The State of Oklahoma might have different Due Process rules for universities, but I haven’t seen any commentary on that.
(Due Process rules can end up being pretty weird depending on the chain of case law. But what gets considered “due process” is something that get defined under Common Law. It isn’t something that is defined by itself in the Constitution.)
@Stormy Dragon:
Well, only if you take her sermon on karma as an argument rather than some sort of parable that conforms to her argument in more vague, moralistic terms.
@Gustopher: I don’t know why the thread didn’t end here.
Hey, here’s an interesting change of events…
Remember how I said the fraternity will likely reopen? (… way back up there in this thread?)
Looks like lawsuits have been filed to attempt to do so.
http://www.dailykos.com/story/2015/03/13/1370650/-Whoa-SAE-fraternity-files-lawsuit-denies-they-are-racist-say-they-re-being-tarred-and-feathered
And… they have the lack of sensitivity to say they are being “tarred and feathered”.
Good times.
@Bob Dobbs: This is a truly awesome story, man.
@Liberal Capitalist:
It will go nowhere. This chapter had its charter jerked by national. It has no right to exist.