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.”
The UT football team would like the OU squad highly scrutinized...
92 Yards of History.
“Their overreaction makes me worry that the anti-racists are a bigger threat than the racists.”
It could be.... In past the “witches” have been by and large less harmless than the witch hunters.
This is a public institution. They do not have the right to discriminate against people because of their speech (aside form inciting violence or libel/slander) or beliefs.
I saw where she had on some black guy, I beileve his name was Isaac, and his feelings on the matter was to react with love and not more hate. I thought to myself what a great young man and excellent role model, BUT the way Megan kept on acting all astonished and kind of like egging on how extrordinary it was that he wasn’t hatefully bashing such despicable behaviour...I don’t know, it just seemed like she couldn’t understand a Christian attitude and trying to get him to say something negative.
Or maybe I got it backwards here. I haven't been following this invented outrage.
is this a joke? yes, OU appears to have violated the first amendment by expelling two students for engaging in hate speech. but you think Boren should come out and defend the “right” of whites to chant “n*****”?
good Lord
Thats it exactly: kick the kids out to settle the rest of the campus down, worry about the repercussions later.
Thing is that the one kid, in his apology, stated that he “withdrew” from the University. This contradicts Boren’s statement that he was expelled, and if true it presents a major obstacle for the kid in trying to sue.
Otherwise, the kids have an incredibly good case. There are all sorts of precedents on their side and it’s hard to argue that a former US Senator and OU’s legal staff wouldn’t be aware of them prior to ordering their expulsions.
did blacks lynch themselves in the jim crow south too?
“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?”
Probably improve them immensely. First they will be millionaires, then they will have a reputation for defending the Constitution, civil rights etc. In case you have not noticed, outside liberal enclaves like universities, etc, the race card is dead. Hopefully this case will kill it for universities too. Racist speech by any race is protected offensive speech just as much as burning a flag is.
Boren’s initial statements were just that: strong condemnation of what was said, but also a validation that Constitutional protections had to be respected.
I was VERY surprised at how quickly he followed that up with the expulsion order. I figured the kids were going to get expelled, but only after mass protests on campus. I’m guessing that someone showed Boren the cost benefit analysis of having to settle lawsuits in the mid to high seven figure range vs having the campus turn into Ferguson West.
Just because some people have been brainwashed into cringing when they
hear the "N" word, (Specifically Whitey), doesn't mean the Constitution goes away.
Oh, and to add (building on my post above), look at Borens initial comments talking about process and Constitutional protections, and compare with his quick turnaround with expulsion.
If those kids do sue, discovery is going to be a real problem for the university. Hopefully Boren and his legal staff were renting space on Hillary’s basement email server because if evidence comes out that Boren et al were aware of the Constitutional issues but made a cynical decision to ignore them and expel the racist twerps for the sake of expediency? I mean? They better be prepared to dig really deep into the old endowment to make the lawsuit go away.
do you think that even if they have the “right” to utter racist epithets, they should exercise that right, or that any decent person would?
yes, OU will have violated the first amendment if they expelled anyone for using hate speech
I think tcrlaf’s post refers to a lawsuit that might be filed by the expelled students for violation of their First Amendment rights, not a lawsuit filed by someone who’s offended by their actions.
Thanks, I didn’t understand what was happening.
That’s not how I read it at all. It appears that the post was clearly saying that the president should condemn what was said, but defend the right of the students to say it. Of course, the chant was offensive speech, but offensive speech is included in the First Amendment’s right to free speech. We would not need a First Amendment if it were only intended to protect inoffensive speech. It is precisely BECAUSE it is intended to protect offensive speech that the First Amendment is necessary.
true, there’s a lot of demand among employers for white trash racist “defenders of the constitution”
i agree 100% these racists had a right to say whatever they wanted. but i don’t think boren needed to get out there. he didn’t have to say anything, or could limit his statement to, “i condemn they usage of the word, even if they have the right to use it.”
Their lawyers might argue that their First Amendment rights have been violated.
But, this frat’s little song does go further than using a word. They’re also singing about hanging someone from a tree. And not all of them were expelled; only the two students reportedly leading the song were.
According to one of my sons, white students at his college use that word often. He’s even noticed them using it in front of black students. (For the record, my son is not “white” and doesn’t use the word.) So, apparently, college students don’t get into trouble for using a word.
But, I would suppose that, if two of those students were to lead other students in a song about gleefully lynching someone, someone might take issue.
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