No, a public university may not expel students for racist speech

Washington Post ^ | March 10, 2015 | Eugene Volokh

[C19fan]

Some Oklahoma University students in the Sigma Alpha Epsilon fraternity were videorecorded singing (as best I and others can tell),

There will never be a n***** at SAE There will never be a n***** at SAE You can hang him from a tree But he’ll never sign with me There will never be a n***** at SAE

[Edited from source]

Oklahoma University president David Boren said, “If I’m allowed to, these students will face suspension or expulsion.” But he is not, I think, allowed to do that.

[Amendment10]

I can see where suppressing racist speech helps to prevent riots, the governments responsible for protecting citizens.

However …

Not only have the states never amended the Constitution to expressly make not being insulted a constitutional right, but also consider this. When universities shut down racist speech they run the risk of violating Section 1 of the 14th Amendment, Section 1 prohibiting the states from unreasonably abridging constitutionally enumerated rights, 1st Amendment freedom of speech in such cases.

[tanknetter]

The number of precedents upholding freedom of speech, even racist speech, on public university campuses is significant.

And I mean really significant. See the link posted in the Volkhov piece cited earlier.

These kids are looking at having there personal and professional lives ruined. Deservedly so. They’ll (and perhaps more importantly their parents) be very receptive to the notion that they can recoup some of their expected financial losses from the unconstitutional expulsion. Which will be (probably already is) being made by a long line of lawyers and advocacy groups looking to represent them.

Which could very well include the ACLU. Which loves to take cases like this to demonstrate their “non-partisan” nature and commitment to the First Amendment.

[tnlibertarian]

Napkin? Nissan? Narwal?

N*****s, N*****s, living in the ocean, causing a commotion, cause they are so awesome!

[KC_Conspirator]

While these kids are morons, the author is correct.

[NEMDF]

If the university attempts to suspend or expel them, I hope the ACLU shows up to defend their right to free speech.

If the university attempts to suspend or expel them, I would think the university will have to suspend or expel every African American who utters the “n word”, as well.

[DoodleDawg]

They cut these kids off in a split second. So much for brotherhood.

You said it yourself; the Greek system is big business. And no business, regardless of the industry, wants bad publicity smearing it's good name. And this was about as bad as publicity gets, so I'm not surprised that SAE dropped the hammer like it did or as fast as it did. What, after all, was there to investigate and what possible mitigating circumstances were there to what they were doing?

[kingu]

So this overrules all eviction laws in the state for the students who established residency there? Having gone through the process and education of throwing someone out of my house, I’d likely go with not an open and shut case. After all, the presumptive requirement of membership is no longer a factor since the fraternity no longer has permission to use the building.

[tanknetter]

SAE, as a private organization, had every right to sanction those racist twerps.

Similarly, if OU were a private university it would have every right to sanction those racist twerps.

However OU, as a public university, operates under much stricter constraints, including the 1st Amendment. Sanctioning those racist twerps qualifies as governmental action. Case law and precedent are clear on that.

[Tau Food]

Well, I just don't think that Oklahoma taxpayers face too much exposure in any case these students bring. By the time a jury decides how much they as taxpayers should give these students, these students will probably have graduated from some other college somewhere. And, there probably won't be a lot of sympathy for them.

Maybe the judge will award some fees for the attorneys, though. And, of course, that's always a good thing. /sarc

[DoodleDawg]

The university will not expel them for what they said. The university will expel them because they violated the student code of conduct or created a hostile environment or some such reason. So the First Amendment won’t enter into it and the students who were expelled will have no legal recourse.

[mass55th]

"The news is reporting that 2 students have now been expelled not for speech, but for creating a “hostile learning environment” for others."

What learning environment is there in a fraternity? Drinking? Getting laid? Having parties?

[DoodleDawg]

So this overrules all eviction laws in the state for the students who established residency there?

They didn't have a lease. They had, at best, an agreement with SAE to live in the frat house for a specified rent. SAE has disbanded the chapter so really they have no agreement with anyone and the university wants its property back.

And it's not like they're on the street. The university has said that they can contact the Dean of Students if they need special arrangements for housing.

[tanknetter]

I’m not a lawyer, let alone these punks lawyer, but if I was one of the first things i’d do is hire PIs to go combing through every nook and cranny of OU to see if there are radical organizations or students there who have made referencible comments along similar lines, just directed at other groups. Like if there are any members of NOI on campus spouting Calypso Louis stuff, for instance.

[tanknetter]

Case law/precedents are clear on this: Public Universities have a very high, almost impossibly high, bar to cross when it comes to expelling someone for speech.

“Hostile environment” may be an easy trigger to pull to get the punks off campus right away, but it’s going to be next to impossible to defend in court. Especially since the offending speech was made on a privately chartered bus going to a private function.

[Regal]

It’s a long shot but they could have gone the “therapy” route. The SAE National could have tried to save face by stressing their obligation to mold men, and they were going to see to it that these wayward lads received the best sort of therapy and counseling so that they don’t go down the wrong path.......

[tanknetter]

To add, Boren is justifiing the expulsion by calling the comments “threatening”

Fair enough, but that standard has to be evenly applied under the law. As Volkhov point out, that standard applies pretty easily to pictures of Malcolm X with the M14 and the “By Any Means Necessary” caption. Hope no one on OU has one of those hanging in their dorm room ...

[skeeter]

These kids are looking at having there personal and professional lives ruined. Deservedly so.

Thank goodness there were no cellphones around to record me reciting the eenie meenie mynee moe chant as a boy. I'd be on skid row today.

[DoodleDawg]

“Hostile environment” may be an easy trigger to pull to get the punks off campus right away, but it’s going to be next to impossible to defend in court. Especially since the offending speech was made on a privately chartered bus going to a private function.

I disagree that the university will have a problem defending it in court. Violations of the student code or hostile environments can be defined broadly enough to protect them from suits.

[DoodleDawg]

It’s a long shot but they could have gone the “therapy” route. The SAE National could have tried to save face by stressing their obligation to mold men, and they were going to see to it that these wayward lads received the best sort of therapy and counseling so that they don’t go down the wrong path.......

These morons touched the third rail of political correctness and dropped the "N" bomb. There is no face to be saved by SAE by offering a "boys will be boys" defence and promising to counsel them. Their only out was to go nuclear and eliminate the problem. Which they did.

[tanknetter]

The Supreme Court said otherwise in Papish v Board of Curators and Healy v James (per Volkhov at the link earlier in the thread)