OU Frat’s Racist Chant Raises First Amendment Question

March 19, 2015

By Tanner Howard at U.S. News & World Report

In the 1972 Supreme Court case Healy v. James, Central Connecticut State College defended its refusal to recognize a chapter of Students for a Democratic Society on its campus. College administrators argued that SDS’s speech was likely to incite chaos, at a time when campuses were hotbeds of political activity that threatened to spill over into violence.

In a unanimous ruling affirming the free speech rights of the student group, Justice Lewis Powell said, “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”

Recent events at the University of Oklahoma, where leaked video showed Sigma Alpha Epsilon fraternity members chanting a racist song, have again raised questions about the free speech rights of students.

While the incident has sparked fierce condemnation over the fraternity members’ racist message, there has been no clear consensus about the implication of First Amendment rights.

“The First Amendment is only as strong as the least popular, most repugnant speech that it protects,” said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education, a civil liberties group.

David Boren, president of OU, reacted swiftly and decisively after the video surfaced. On March 9, he released a statement calling the fraternity’s actions “reprehensible,” removing SAE from the campus, closing its chapter house and halting its affiliation with  the university. The following day, Borenannounced that he was expelling two students, later identified as Parker Rice and Levi Pettit, who allegedly led the chant.

In a statement, the national SAE organization endorsed Boren’s actions, calling the student’s behavior “unacceptable.”

OU senior Marquis Ard, who is a member of Unheard OU, the black student alliance that helped bring the videos to light, was pleased with the administration’s quick response, but viewed the incident as evidence of the ongoing disparities prevalent in society.

“I think Boren set a nationwide precedent with the removal of the chapter and expulsion  of the students directly involved,” Ard said in a phone interview from Norman, Oklahoma. “But the world, much less OU, still can’t deal with what it means to exist in a fundamentally anti-black world.”

In response to the expulsions, the board of alumni for University of Oklahoma’s SAE chapter said it had hired high-profile attorney Stephen Jones. While Jones has not taken formal legal steps, he says he is “not ruling out a lawsuit” against the university over the expulsions. Jones, an Oklahoma graduate, is most well known for defending Oklahoma City bomber Timothy McVeigh in 1996.

Robby Soave, staff editor for Reason Magazine, a libertarian publication, argued that the decision could limit speech on college campuses, and hopes that the group brings legal action against the school.

“It’s best for a climate of free speech on campuses if they sue, because it has a chilling effect if they don’t,” Soave said . “Other people could choose to not say things because of the consequences they might suffer.”

In previous cases related to First Amendment rights on college campuses, the courts have largely ruled in favor of students targeted for their speech. Nine years after the Healy v. James case, the Supreme Court ruled that the University of Missouri at Kansas City couldn’t prevent a Christian student group from using campus facilities to meet, setting an important precedent protecting student’s rights on a college campus.

And in 1993, the Sigma Chi fraternity at George Mason University won a suit against the school. The Greek house was placed on probation for two years after holding an “ugly women” contest that other students condemned for being racist and sexist. While the school argued that the event “created a hostile learning environment,” the U.S. Court of Appeals for the 4th Circuit disagreed, saying the school couldn’t ban the speech “because of its message [or] its ideas.”

However, the courts have found that speech that threatens a student’s ability to learn isn’t protected.

In the 1998 case Davis v. Monroe County Board of Education, a mother sued a school district on behalf of her daughter, who had been sexually harassed in her elementary school. The court found that the student’s rights under Title IX of the Education Amendments of 1972 had been violated, excluding her from receiving an education in a safe learning environment.

With the mission of educating the next generation of leaders, college campuses are important forums for free speech, said Cohn of the individual rights foundation. For that reason, he argued, students must be able to freely express their opinions without fear of reprimand.

“The process of learning only takes place when you have the ability to have that kind of exchange in an unfettered way,” he said. “That’s why the case law so powerfully talks about university campuses as the marketplace of ideas, and where free speech is supposed to be protected to the upmost.”

Kent Greenfield, law professor at Boston University, believes that the targeted nature of the fraternity members’ speech should be seen as creating a hostile atmosphere, something banned in federally funded institutions by Title VI of the Civil Rights Act. Greenfield argues that the chants give black students “reason to worry” about their safety, and that the speech “makes possible actual violence” that can’t be silenced simply by countering the racist chant with their own protests.

“The remedy of counter speech is a good remedy if the speech that needs to be countered is from a small, powerless group,” Greenfield said. “When free speech is aimed at a discrete group that’s already feeling some marginalization, it just adds to the hassle they have to go through just getting through the day.”

At the University of Oklahoma, just over 5 percent of the student body is African-American.

In his remarks, OU President Boren, a former U.S. senator, said that the students were expelled for creating a disruptive atmosphere on campus. Boren condemned the fraternity for using the chant to “hurt, threaten, and exclude other people,” something Kenneth Jost, adjunct law professor at Georgetown University, cites as further evidence for the student’s expulsion.

“For the relatively small percentage of African Americans in that student body, they must feel diminished, and possibly even threatened by fellow students chanting this,” Jost said. “If [the SAE members] had been allowed to chant it without any consequences, they would feel less a part of the community.”

Jost also argued that free speech can be limited if it advertises a discriminatory policy. He cited the 1973 case Pittsburgh Press Co. v. Human Relations Commission, which ruled against a newspaper that advertised jobs classified by sex, a form of workplace discrimination.

“In my view, the fraternity boys were not merely being offensive,” Jost said. “They were announcing there will be no African Americans in their fraternity, and they’re so proud of it that they created a song about it.”

While Cohn believes the students would win a lawsuit over their expulsion, he suspects they may balk at keeping the issue in the public eye, as a lawsuit defending their offensive speech would do. It’s a far cry from the Healy v. James decision, which allowed SDS to organize on Central Connecticut State College’s campus. The leftist, anti-Vietnam War group eventually gave rise to a faction called the Weather Underground Organization, which bombed several government buildings during the 1970s.

Yet should a case proceed in a court of law, as the fraternity’s decision to hire a lawyer suggests is possible, it could set an important precedent for the future of First Amendment rights on college campuses, just as the Healy v. James decision did.

“The university president is betting that these young men aren’t willing to stomach a several-year legal battle to vindicate their rights,” Cohn said. “I never try to place bets on what individuals will do, but I certainly hope they take some action, because it wouldn’t be to protect themselves, it would be to protect all of our rights to free speech.”

Schools: University of Oklahoma