Posted on 03/11/2015 6:49:27 AM PDT by SeekAndFind
This week several University of Oklahoma frat boys were caught on tape singing a vile, racist song (and, no, it wasn’t “unconscious” racism or “coded” racism — it was straight up segregation-era hate). The video triggered a tidal wave of outrage on and off campus. A top football recruit “de-committed” to OU and committed to Alabama, the national fraternity expelled the local OU chapter, and students, coaches, professors, and administrators marched in protest.
To this point, the matter is rather simple. The SAE students engaged in racist expression, and private citizens countered with expression of their own — doing what the marketplace of ideas does best, countering bad speech with better speech.
Then, the government got involved. OU president David Boren has summarily expelled two students allegedly responsible for the chant.
I agree with Eugene Volokh. This action is almost certainly unconstitutional. I’m not going to repeat his entire analysis, but his first point should be sufficient:
[R]acist 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.)
Our public universities are becoming national leaders in trampling the Constitution to legislate their brand of “inclusive” morality. FIRE’s Robert Shibley gets the issue exactly right:
Censorship isn’t necessary for those who are confident in the truth of their views. It’s a signal of insecurity and displays a fear that if an idea is allowed to be expressed, people will find that idea too attractive to resist. Somehow, college administrators are convinced that if they don’t officially punish racism, their students will be drawn to it like moths to a flame. But there’s simply no reason to expect that. Given the history of campus activism in our nation from the civil rights movement onward, there are myriad reasons to expect the opposite.
Instead of government crackdowns on a viewpoint, it is far better to let the marketplace of ideas determine the social consequences for racist speech. In this instance, the OU members of SAE are not only likely to spend the rest of their college careers as pariahs but to be hounded to the ends of the earth on social media and exposed for posterity on Google.
When I was at FIRE I fielded a call from an angry administrator demanding to know what he could do to “take action” after a handful of Klansmen posted racist flyers on a community bulletin board. He forwarded the flyers, which were full of typos and barely legible. I asked him whether he thought his students would be persuaded by this nonsense or would use it as an opportunity to express their support for their African-American brothers and sisters. The latter, he said, and he explained the groundswell of student expression in response. “There’s your ‘action,’” I told him. Let the students send their own message. If the Klan wants an argument, it will lose.
I hope these students find the courage to sue — not because anyone agrees with their words but because the First Amendment needs a defense. They said terrible things, but they did not violate the law. Ironically, the only lawbreaker here is a university so incompetent that it created First Amendment martyrs out of students who redefine the word “crass.”
Cheaper for OU to pay off any potential lawsuit, than it is to take the heat for not doing “something”.
After all, it’s not like it’s THIER money they will be paying out.
Obeying the law is now optional in the Kenyan’s “fundamentally transformed” turd world “America”.
Why has no one mentioned underage drinking? Surely that can get students expelled.
“Rice, a graduate of an expensive Catholic prep school, admits that booze is no excuse”
http://www.newser.com/story/203840/expelled-ou-student-sorry-for-horrible-mistake.html
That would only be reasonable and fair.
In the end the university will pay a high price for its overreaction
“Law” is what the Black Panthers, Obola the cryptoMoslem,
and antiWhite withHolder say it is.
American Thinker’s Thomas Lifson said it best:
Yes, the chants were hurtful (though they were done in private and not intended to be shown in public), and yes, slavery and Jim Crow are unique evils in the history of our nation. But we are on a dangerous path.
Back in 1964, the wave of campus activism that eventually turned our universities into left wing bastions was sparked in the name of “free speech.” We have come full circle, and free speech is the last thing that campuses want to defend.
See. This proves what I’ve been trying to tell people. The Sooners are evil.
I agree. 38-35.
There is no presumption of privacy in these days of video capable cell phones.
It’s all about white people saying the same thing blacks do all the time. Now Boren’s the racist.
On the other hand do you want to be known for the rest of your life as the guy who sued his school for the right to say "n***er"? What's that going to do to his job opportunities?
It would be an interesting case and would send many into a tizzy(and be entertaining) but my guess is that the expelled students feel so publicly humiliated that they just want to hide under a rock now.
And without a plaintiff there is no case, and no real debate.
I am disappointed in Megyn Kelly who prides herself on being a legal expert doing two segments on this situation from aan emotional standpoint ignoring the legal issues.
It reminds me of the Soviet Union's intolerance of any sort of dissent. Sure, those people who sang that racist song ought to be made to feel bad, but official retaliatory action over a stupid song?
How about we just let social pressure punish them and leave off using the force of government to control people's speech?
IMO, Megyn jumped the shark some time ago. I've come to expect this sort of nonsense from her.
While the technical aspects of law might protect them from the action, there is the probability that the University and the SAE charter, as well as any agreements, etc. between the two may be operative as a ‘contract’ between the two.
Sue, sue, sue. The Duke Lacrosse team case should be a clear road map.
Sadly it’s a huge missed opportunity for freedom and personal responsibility. Imagine what would have happeneded if the university president instead had said something like this:
“The university condemns this racist speech, which is hurtful and not acceptable by the standards of modern society. However, we each have the right under the first amendment to engage in such acts, even though they are hateful and offensive to nearly everyone. The University of Oklahoma strongly defends the constitutional right to freedom of expression and will publish the names of all those involved in this video, all members of the SAE fraternity, and any one else we identify as having participated in this act. It is our sincere hope that their national fraternity acts to revoke the OU SAE charter and that the students involved bear the responsibility for these hurtful acts for the balance of their time here, and as they seek to enter the next phase of their careers. The university stands equally firm behind freedom of speech, and the inherent responsibility that comes from exercising that right”
A missed opportunity, a teachable moment.
There you have your show prep, Rush. You’re welcome.
She’s obviously socially liberal, but unfortunately she’s the best act on FNC.
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