FIRE has serious concerns about the University of Oklahoma’s (OU’s) disregard for the free speech and due process rights of two students who were told yesterday they would be expelled from the university for their participation in a “racist and exclusionary chant” that was caught on video. As I wrote on The Torch yesterday, the language in the video is constitutionally protected, and OU is legally and morally bound by the First Amendment not to punish students for speech merely because it is offensive or hurtful.
Parker Rice, the first of the two students to be publicly identified, has apologized and stated that he withdrew from the university. Parents of Levi Pettit, the second student, have also publicly apologized. These statements, however, should not alleviate concerns about OU students’ rights. Even if neither of these students choose to challenge OU’s actions, their punishment remains a threat to freedom of expression on campus, and no student can be sure what action administrators may take against them with no notice or meaningful opportunity to be heard.
A growing number of media outlets are pointing out that whatever one’s personal feelings about the chant in question may be, the university’s actions are inconsistent with our nation’s broad free speech protections. For example, the New Republic took the question back a step for those less familiar with First Amendment jurisprudence, citing the Supreme Court’s consistent reiteration of the principle that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of conventions of decency.” Constitutional law professors including Erwin Chemerinsky, Geoffrey Stone, and Eugene Volokh have faulted OU on First Amendment grounds as well.
Some observers have also emphasized the practical reasons why punishing students for racist speech is ineffective or even counterproductive. Slate’s Jamelle Bouie aptly remarked yesterday that “[e]ducation would be better”—those who strive to combat racism should engage with those who contribute to it, perhaps changing their thinking instead of just their behavior. FIRE wholeheartedly agrees that the best answer to speech with which one disagrees is more speech, not punishment.
Blake Neff of The Daily Caller shares FIRE’s concerns about due process, as well. As he points out, OU has written procedures that dictate that students facing punishment for conduct code violations must receive notice of the charges against them, a meeting to discuss the charges with the Student Conduct Office, and a hearing if timely requested. The procedures even afford students additional safeguards when they are facing expulsion. Yet Rice and Pettit were informed by the university president—not the conduct board—that they were to be expelled based solely, apparently, on President David Boren’s judgment of the case. And Boren’s letter does not even specify what part of the student conduct code Rice and Pettit supposedly have violated—the most basic information they would need in order to defend themselves against punishment by the university.
OU’s provisions do allow for “prompt action” where “ there is substantial concern for the health, safety, or welfare of a member of the University community.” However, it is doubtful that this provision could be validly applied in this case. For one thing, it is unclear how a chant about black students’ exclusion from a fraternity could be deemed a safety concern. Secondly, according to The Oklahoman, university legal counsel Anil Gollahalli characterized the case as an academic matter. This labeling, the outlet reports, allows the university to expel students without approval by the board of regents, but it also precludes any argument that the students needed to be kicked off campus immediately. After all, how many genuine academic disputes pose any physical danger to the campus community?
Unfortunately, not all civil liberties advocates are taking a strong stance in favor of student rights. The American Civil Liberties Union of Oklahoma (ACLU OK) released a statement on Tuesday understandably denouncing racism and encouraging the administration to respect students’ due process rights. Another statement posted yesterday on ACLU OK’s website mirrored Bouie’s argument that counter-speech is the most effective response to hateful speech. Disappointingly, however, the ACLU chapter’s remarks have failed to note that OU has ignored its own policies in dealing with Rice and Pettit and taken action against them for speech that is—however despicable ACLU OK or others find it—protected under the First Amendment.
ACLU OK director Ryan Kiesel said, “From everything we’ve seen it appears the university has stuck by their commitment to due process.” But how is Boren’s letter informing Rice and Pettit of their expulsions from the university—without notice of what student conduct code provision they have violated, and before any hearing on the issue—consistent with OU’s written procedures? And how could the punishment meted out without following those procedures be viewed as a “commitment to due process”?
It is also disappointing that ACLU OK has not, as others have, spoken about the First Amendment problem inherent in punishing speech simply because it is racist. Even if ACLU OK is unsure whether the chant created a “hostile environment” that must be addressed by OU (FIRE believes it falls far short of this standard), the interest in ensuring that expression on campus is not unduly chilled or unlawfully punished is strong enough to merit comment by any free speech advocate. This is particularly true with respect to the ACLU, which has a history of defending hateful speech from government censorship.
Unless the two students decide to fight back, the university may indeed get away with violating their constitutional rights this time. But other students should be vigilant, because it is only a matter of time before OU takes action against someone else for their protected speech, or moves to expel another student without due process. In order to understand their rights, students at OU and elsewhere should read FIRE’s Guide to Free Speech on Campus and our newly revised Guide to Due Process and Campus Justice.