By Staff at The Patriot Post
A video showing Oklahoma University Sigma Alpha Epsilon (SAE) fraternity members chanting racial slurs and singing about lynching has put the spotlight on the inherent conflict between First Amendment-protected speech and college speech codes begetting “zero tolerance” policies. These policies have mistakenly enshrined the “right” not to be offended.
There is little question the chant was offensive. “There will never be a n—– at SAE. There will never be a n—– at SAE. You can hang him from a tree, but he can never sign with me. There will never be a n—– at SAE,” belted out students on one of five buses chartered to take them to a Founder’s Day party at a country club in Oklahoma City two Saturdays ago.
The fraternity’s national organization conducted its own investigation and announced it was shutting down the OU chapter. “We apologize for the unacceptable and racist behavior of the individuals in the video, and we are disgusted that any member would act in such a way,” their statement reads. “Furthermore, we are embarrassed by this video and offer our empathy not only to anyone outside the organization who is offended but also to our brothers who come from a wide range of backgrounds, cultures and ethnicities.”
All well and good, but then University President David Boren crossed the line. He expelled two students identified as leaders of the chant, using the dubious rationale that has usurped the Constitution on far too many college campuses. It is the idea that offensive speech creates a hostile learning environment, and, as night follows day, such an environment engenders a “zero tolerance” policy. “I have emphasized that there is zero tolerance for this kind of threatening racist behavior at the University of Oklahoma,” said Boren. “I hope that the entire nation will join us in having zero tolerance of such racism when it raises its ugly head in other situations across our country.”
Barbara Arnwine, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, claims Bowen and OU “would’ve been compelled to do something” or the Justice Department’s Civil Rights Division would have gotten involved via Title VI of the Civil Rights Act. Title VI “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.”
Several legal scholars weighed in on the issue, and most believe the university trampled the Constitution.
“The courts are very clear that hateful, racist speech is protected by the First Amendment,” saidErwin Chemerinsky, a constitutional scholar and dean of the law school at the University of California, Irvine. UCLA constitutional expert Eugene Volokh agrees, explaining there is no constitutional exception for speech that creates the aforementioned hostile environment, nor speech that simply refers to violence absent a direct threat to an individual.
Geoffrey Stone, a professor of law at the University of Chicago, addressed the Title VI argument, noting that it is intended to combat literal discrimination, and statements by students in a private environment aren’t close to violating it. “The statements were made in the innocuous setting of a bus,” he explained, “and any disruption came from the showing of the video, not from the students’ speech.”
Volokh also tackled the burden of proof issue, explaining the university might be able to discipline students involved in the frat’s admissions decisions if they can be shown to “have denied membership to people based on race, or intentionally tried to communicate to potential members that they would deny them membership that way.” And while SAE may insist that those who depart from its principles no longer use its name, and students who have engaged in the chant may pay a social and economic price for their actions in the court of public opinion, Volokh insists the government or University of Oklahoma “generally cannot add to this price, whether the offensive speech is racist, religiously bigoted, pro-revolutionary, or expressive of any other viewpoint, however repugnant it might be.”
On the other hand, the university might pay a price for expelling those students based solely on what they said. A board representing OU’s disbanded SAE chapter hired lawyer Stephen Jones, who served as Timothy McVeigh’s lead defense attorney during the Oklahoma City bombing trial, “to assist them in evaluating” their legal position, Jones revealed. He further explained he was retained “to protect the due process rights, the First Amendment rights, and the Fourteenth Amendment rights” of the fraternity’s members. The board is primarily concerned about their “physical safety,” Jones said, adding that some of them “have frankly been afraid to go to class.”
Jones outlined the parameters of a possible lawsuit, insisting the university’s response to the video was a “premature rush to judgment” that implicitly painted all fraternity members “with a tar brush” identifying them as bigots or racists.
For far too long, university campuses have been strangled by political correctness that actively promotes a stultifying conformity at best, and outright totalitarianism at worst. In his book “Unlearning Liberty,” Foundation for Individual Rights in Education (FIRE) president Greg Lukianoff chronicles hundreds of examples of campuses where the need for “intellectual comfort,” an obsession to punish those who “offend,” the emergence of “free speech zones,” and student demands for “trigger warnings” for “sensitive” course materials have rendered the free and open exchange of ideas completely obsolete. Even worse, students who fail to abide by such restrictions face mandatory sensitivity training, kangaroo student courts where they are presumed guilty until proven otherwise – or, as this case and many others like it indicate, expulsion for constitutionally protected speech.
America has long abided the immortal words attributed to Voltaire: “I do not agree with what you have to say, but I’ll defend to the death your right to say it.” That is the essence of the First Amendment, and it doesn’t evaporate once one steps onto a college campus – no matter who gets offended by something as “uncomfortable” as Freedom of Speech.
Schools: University of Oklahoma