The Constitutionality of Expelling Students for Racist Speech

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Summary: Many argue that University of Oklahoma fraternity members that were caught on video participating in a racist chant cannot be suspended because this speech is constitutional.

According to the Washington Post, it is not constitutional for the University of Oklahoma to expel students that were caught on video singing a chant that contained racial slurs.

  

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Two members of the Sigma Alpha Epsilon fraternity have been expelled. Some students in the fraternity were allegedly singing a song that went something like this: “There will never be a n*gger at SAE/There will never be a n*gger at SAE/You can hang him from a tree/But he’ll never sign with me/There will never be a n*gger at SAE.”

David Boren, the president of the university, said after the video was released, “If I’m allowed to, these students will face suspension or expulsion.”

However, although two students have been expelled for their role in the chant, many argue that this is unconstitutional.

Although racist speech is offensive, it is protected by the U.S. Constitution, just as other forms of contemptible ideas are. Universities are prohibited from disciplining students for their speech. In the past, courts have ruled unanimously on this issue. Although Boren argued that the students were expelled for their “leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” However, there is no exception to the First Amendment for racist speech, exclusionary speech, or for speech that has “created a hostile environment.”

In November, the University of Virginia was in an uproar over an article Rolling Stone published about the school’s handling of campus rapes.

In addition, speech does not lose the protections of the Constitution because it refers to violence (“You can hang him from a tree.”).

In certain situations, speech that is perceived as a “true threat” of violence may fall within a First Amendment exception. However, this was not the case at the University of Oklahoma. The speech would not have been perceived by listeners as a threat. Although there is another exception to the First Amendment for soliciting or creating a conspiracy to commit a criminal act, the chant “hang him from a tree” does not fall into those exceptions, either.

Some have suggested that the chant may show discriminatory decision-making on behalf of the fraternity in its acceptance of new members. A university may require that groups to which it provides multiple benefits not discriminate in its admissions. Nondiscrimination rules are applied generally to groups, even separate from any benefits they receive. A great deal depends on whether the groups are viewed as being small and selective enough to be protected by a right to “intimate association” and whether anti-discrimination laws would interfere with the expression of the group’s ideas, and further burden their right to “expressive associations.” At that point, the school would be able to discipline students who are involved in the fraternity’s admissions process and it is shown that membership has been denied based on race—or it has been made clear to others that their membership would be denied for this reason. According to USA Today, a teenager in attendance at the party said that the chant was “taught” to the partygoers, which may indicate systemic racism in the fraternity.

Allegations of hazing hit Dartmouth College in 2012.

Even if the group has discriminated against applicants based upon race, and several members participated in that decision, the penalty for these actions must be based on penalties that are handed out to others that violate the rule. If discrimination usually results in a fine for a fraternity, the school cannot then expel students that have engaged in the same activities as well as constitutionally protected speech, because this shows that the school is punishing the group for its speech as opposed to its conduct.

The concept is similar to a common theme in anti-discrimination law. If a black student is expelled for the same conduct for which a white student received a slap on the wrist, the law acknowledges that the expulsion was based on race, not the conduct itself. Therefore, if the SAE members are expelled for the speech and conduct that would typically receive a reprimand, then the expulsion is likely based upon the speech.

In 2012, a University of Tennessee student suffered alcohol poisoning from “butt chugging.”

The expulsion rules described above only apply to the university. The national fraternity may suspend the chapter if it wishes, and other Greek organizations may refuse to correspond with this specific chapter in the future. The conduct may certainly seen to be a violation of the SAE’s “True Gentleman” creed:

“The True Gentleman is the man whose conduct proceeds from good will and an acute sense of propriety, and whose self-control is equal to all emergencies; who does not make the poor man conscious of his poverty, the obscure man of his obscurity, or any man of his inferiority or deformity; who is himself humbled if necessity compels him to humble another; who does not flatter wealth, cringe before power, or boast of his own possessions or achievements; who speaks with frankness but always with sincerity and sympathy; whose deed follows his word; who thinks of the rights and feelings of others, rather than his own; and who appears well in any company, a man with whom honor is sacred and virtue safe.”

SAE may insist that this fraternity no longer use its name. Similarly, the fraternity members may take a hit to their social lives and their professional lives—they definitely will not walk away from this incident unscathed. According to NPR, one of the two former fraternity brothers has said he has learned “a devastating lesson.”

KFOR.com also reports that some experts argue that the students must follow the school’s code of conduct, or risk being kicked out. Still, others argue that what the school is doing is censorship.

According to Dr. Joey Senat, a media law professor at the university, “David Boren’s zero tolerance on campus for particular kinds of speech is not only a violation of the First Amendment, it does little to address the real problem of racism.”

Legal analyst Adam Banner added, “OU’s best bet is going to be to try and rely on their code of conduct and use one of the prohibited acts that’s listed in that code of conduct instead of relying on a Constitutional issue.” He added that the school must ensure that students’ due process rights are protected.

To sum it up, the government simply cannot punish people for speech that is repugnant unless it falls into an exception to the First Amendment.

Source: Washington Post; KFOR.com

Photo credit: ktla.com