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 |  Subject: The Ridiculous Expulsion of Two Oklahoma Students Over Video Leads to Free Speech Debate  Thu Mar 12, 2015 3:21 am | |
| NORMAN, Okla. — The University of Oklahoma’s decision to expel two fraternity members who led a racist chant on a bus provoked criticism Wednesday from several legal experts who said that the students’ words, however odious, were protected by the First Amendment’s guarantee of freedom of speech.
“The courts are very clear that hateful, racist speech is protected by the First Amendment,” said Erwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine.
Official punishment for speech could be legal if the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it seemed likely to provoke an immediate violent response, according to Mr. Chemerinsky and several other legal scholars, liberal and conservative alike.
But in this case, these experts said, there is no evidence of any direct threat or provocation, and as a publicly financed institution, the university is subject to constitutional boundaries.
The University of Oklahoma has been in an uproar since videos surfaced of members of the Sigma Alpha Epsilon fraternity chanting a song Saturday night in which they used racial slurs to boast that they would never accept an African-American member. The song also referred to lynching, with the words “You can hang ’em from a tree.” The first video was recorded as fraternity members and their dates rode a bus to a formal event, was later posted online and was discovered and publicized on Sunday by O.U. Unheard, a black student group.
On Tuesday, the university’s president, David L. Boren, notified two students that “You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”
Eugene Volokh, a constitutional law expert at the University of California, Los Angeles, and prominent legal blogger, wrote that “similar things could be said about a vast range of other speech,” including praise for Muslim groups like Hamas that call for destruction of Israel, which could make Jews uncomfortable, or calls by black students for violent resistance to white police officers, which white students could interpret as hostile.
A university spokesman said the students were told they could appeal to the university’s equal opportunity officer. On Wednesday, Mr. Boren said he was creating a vice president for diversity in his administration, a position planned before the controversy over the chant. The vice president will oversee all diversity programs, including admissions, officials said. Mr. Boren was in talks to fill the post with an African-American candidate.
Despite the legal concerns expressed by many scholars, the university’s handling of the incident — including the swift shutting of the Sigma Alpha Epsilon chapter and its fraternity house and the expulsion of the two students — has gained wide support on campus among black and white students. Students interviewed Wednesday said they backed Mr. Boren’s decision to expel the two, focusing in particular on the reference to lynching.
“I think what they said was not just offensive,” said Maggie Savage, 20, a sophomore. “If you do anything to make students in a community feel unsafe, you lose the privilege of being able to attend the university.”
One of the two students expelled, Parker Rice, 19, a freshman, apologized for his actions in a statement to The Associated Press. He wrote, “I made a horrible mistake by joining into the singing and encouraging others to do the same.”
In the statement, Mr. Rice said his family members in Dallas were not able to be in their home because of “threatening calls as well as frightening talk on social media.”
The parents of another Dallas-area student seen in the video, Levi Pettit, issued an apology online. “We were as shocked and saddened by this news as anyone,” read the statement from Brody and Susan Pettit. “Of course, we are sad for our son — but more importantly, we apologize to the community he has hurt.”
The national office of Sigma Alpha Epsilon, in Evanston, Ill., said that it planned to expel all members of the Oklahoma chapter from the national organization and that it supported the university’s decision to expel the two students.
Mr. Boren, in an interview Monday as he considered what action to take, said he was examining the relevance of Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by agencies that receive federal funds and, federal officials have said, forbids creation of a “racially hostile environment” in schools.
But Title VI is addressed to literal discrimination, and statements by students in a private setting do not come near to violating it, said Geoffrey R. Stone, a professor of law at the University of Chicago. A university could discipline students for disrupting classes with irrelevant or uncivil speech, Mr. Stone said, or otherwise disrupting the operations of the school.
“But it’s hard to make that case here,” he said of the Oklahoma situation. “The statements were made in the innocuous setting of a bus, and any disruption came from the showing of the video, not from the students’ speech,” Mr. Stone said.
In a break with most legal experts, Daria Roithmayr, a law professor at the University of Southern California who has written about the interplay of law and racism, said that a plausible argument could be made that the students’ action caused a “material disruption” in the university’s educational mission and was not protected by the First Amendment.
“The entire university now has to repudiate the bigotry of a fraternity,” she said, and for black students, “it’s a massive disruption.”
The University of Oklahoma has a code of “rights and responsibilities” prohibiting “conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.”
Whether the Saturday night chant amounted to such a violation, legal experts said, the code could not take precedence over First Amendment rights.
Private universities are not governed by the First Amendment, which applies to governmental actions, and may generally have more leeway to expel or otherwise punish students for speech. But most have codes of conduct and disciplinary procedures that amount to contractual obligations, for administrators and students.
A dispute over punishment in a private university would be “a matter of contract law, rather than constitutional law,” and might involve due process of “fundamental fairness” rather than the First Amendment, said John F. Banzhaf III, a professor of public interest law at George Washington University Law School.
http://www.nytimes.com/2015/03/12/us/expulsion-of-two-oklahoma-students-leads-to-free-speech-debate.html?partner=rss&emc=rss
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