No, it’s not constitutional for the University of Oklahoma to expel students for racist speech

Volokh Conspiracy - Washington Post ^ | March 10, 2015 | Eugene Volokh

[QT3.14]

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

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

University of Oklahoma president David Boren said, “If I’m allowed to, these students will face suspension or expulsion.” [UPDATE: The president has indeed expelled two of the students.] But he is not, I think, allowed to do that.

[HiTech RedNeck]

Not all crimes result in arrests

[Oliviaforever]

And if one is not arrested for an alleged crime, their Constitutional rights cannot be violated.

[TontoKowalski]

The issue is not whether the have the right to attend.

The question is whether the University has the right to expel them (from the University for which they have already gained admittance) solely on the basis of socially objectionable speech.

Could a University expel students for attending and chanting at a legally assembled Pro-life demonstration? A legal Pro-choice rally? A legal political rally for Democrats? A legal political rally for Republicans?

I'm sure you'll agree that the answer is "no" to all the above examples. But, you could find groups of students on a typical college campus who would find each of these to be socially objectionable.

"People don't like that" is not sufficient cause for the University to expel the students.

[HiTech RedNeck]

Say what... if you stole from me you stole from me whether or not you ever were arrested for the crime. (I could sue you for restitution.)

[nathanbedford]

In addition to the points made in this article and to the points made in the excellent article by Andrew McCarthy referred to in the body of this article, I would like to add another point. It is quite right to say that exhortation to violence is not constitutionally protected free speech. McCarthy makes that point quite clear in his article.

What academics who control these universities are doing, however, is something quite different: they are attempting to squelch free speech, not by invoking the doctrine that to incite violence is not protected free speech, they say quite the opposite, that the violent reaction of the listener in opposition to the speaker justifies withdrawing the constitutional right of free speech. This is quite a different matter. It moves the test away from an attempt to find a rational and objective standard for the protection or the suppression of speech, in this case the context which insightful speech is uttered, to an irrational and subjective standard, in this case the presumed subjective reaction of the listener.

Once the test becomes the real or even presumed subjective feelings of the listener, we have Ferguson Missouri on our nation's campuses. All the listener has to do is wax indignant and the utterer loses his right to speak. Objectivity is surrendered to militancy.

I have been complaining about this tendency in this forum for years. It is particularly dangerous in the hands of leftist school administrators who are manipulating vulnerable children.

[Oliviaforever]

Here is the OU policy?

Do you believe OU has the right to maintain such policies?

Abusive conduct: Unwelcome 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. These circumstances could include the frequency of the conduct, its severity, and whether it is threatening or humiliating. This includes physically abusing a person or holding a person against his or her will. Simple teasing, offhanded comments and isolated incidents (unless extremely serious) will not amount to abusive conduct.

[HiTech RedNeck]

And yet that the audience was easily disturbed is not a defense against disturbing the peace.

[HiTech RedNeck]

A sacred cow got gored... probably it is being viewed in the “extremely serious” category.

[TontoKowalski]

That's an interesting question. Most of the examples of "abusive conduct" cited in the policy are, in fact, illegal activities... threats, physical abuse, holding a person against their will. No problem at all with those.

There are some less clear examples that may not be purely criminal in nature. I suppose that, even if one concedes all of these examples are valid, there would be some question if a private fraternity event with invited guests... not open to the general public... would be an atmosphere where "conditions of education or employment" would be in play.

Is this from their Employee Manual? Because it sounds like the type of thing that would be related to their HR standards.

[nathanbedford]

Two points:

1) speech or its suppression is not really at issue in disturbing the peace cases. It is possible that amplification of the speech by electronic means or loud speech in a confined area could constitute disturbing the peace but in that situation the defense of the right of free speech is not really apposite. It is critical that it is not the content of the speech which is an issue.

2) the reaction of the audience is also not really an issue or should not be. The test should be whether the action alleged to disturb the peace is itself disturbing. It is possible that the context might include the proximity of the audience, the confinement of the space, etc. in which it is calculated that offensive action (also including speech) might be unlawful. But the actual reaction of the audience ought not to be the test. Again,the content of the speech should not be the test.

[Oliviaforever]

The word got out, OU students and staff were intimidated, a football recruit de-committed from OU.

The university was harmed.

[boop]

If that's their policy, then the University does NOT have a case.

AFAIK, this happened on a bus, probably chartered, by a private group.

They weren't on school grounds when they sang this, and no actual person was "threatened" in any way.

The students are idiots, regardless.

Criminally stupid, but not guilty of a "crime".

[Oliviaforever]

“AFAIK, this happened on a bus, probably chartered, by a private group.”

The frat is a student organization and the party was an fraternity event.

[vette6387]

"A student would be expelled if he went to each class every day and stop up and sang the song about hanging black people from trees.

A student would be expelled if he exercised his right of free speech by plagiarizing a paper for a class.”

As hateful as the U of O students chant was, there is no legal ground on which the students could be expelled for it. If, on the other hand, the students were attending a private institution, that institution could impose any rules on their students insofar as being able to be students there they chose to. Now if as you suggest, a student were to chant in class, that would be considered a disruption irrespective of the free speech issue and he could be removed for that reason. Remember, these SAE members were not on campus when this took place. It is my opinion, shared by several legal scholars on TV the past few nights , that to expel them for what they were saying is a violation of the First Amendment to which the school leadership has to adhere.
It is nonsensical to try and equate this to plagiarism. Plagiarism has absolutely nothing to do with the First Amendment per se, but rather presents an ethical problem. In this case you don't expel the offender because of the content of his writings, but rather the fact that they are the work of others being presented as your own.

[wardaddy]

Olivia has apparently suffered the indignity of strange fruit somehow...I wish she’d elaborate

She is quite worked up

The other night night she espoused a severe beating of the boys by black men would be justice

I told her that was already pretty damn common as well as white women exponentially disproportionately raped by black men

Aren’t we punished enough as is

It would be fun to know her personal story but race baiters here never are forthcoming

They just preen with indignation

I’ve seen same thing 15 years here

The good thing is they are far fewer in number Now

[Cololeo]

Free speech is free speech, whether you like it or not. Poor taste, offensive (to the masses) thoughts, unpopular ideas are all protected to protect YOU when you might not be the most popular. I hope you aren’t advocating the abridgement of the First Amendment to suit political correctness. Are you???

[Pelham]

If he isn’t there certainly is one on this thread who is doing exactly that.

[Cololeo]

“I may not agree with what you say, but I will defend to my death your right to say it”.

[Pelham]

That’s the old version. The new one is more like “I don’t agree with what you say and I’ll hasten your death for saying it”

[Cololeo]

I’m glad I’m old, because I will defend the original, and I’m still a pretty good shot, if only I had some guns.