SAE’s Speech May Be Protected By FIrst Amendment

March 10, 2015

By Dillon Hollingsworth at The Oklahoma Daily

OU President Boren stood behind a podium in Holmberg Hall on Monday morning and left no doubt about his stance on the actions of the Sigma Alpha Epsilon fraternity members who were caught on video participating in a racist chant that sparked protests across campus.

“Would I be happy if they left the university as students and were no longer our students? You betcha,” Boren said. “I’d be happy. We don’t have any room for racists and bigots at this university. I’d be glad if they left.”

At this point the OU chapter of Sigma Alpha Epsilon no longer exists. All of its members have been suspended from the fraternity, Boren has ordered the house to be closed, and everyone living inside must be out by midnight on Tuesday.

For many, that is not enough. Calls for expulsion abounded across the campus on Monday, and Boren explained in his press conference that the university’s legal team is working to find a way to punish individuals in a way that is constitutionally sound.

Unless their investigation yields something more than the image of fraternity brothers spewing bigotry on a charter bus, though, there is a good chance they won’t find it.

“If the extent of it is what we see in those 11 seconds of video, I don’t see a constitutional basis for [expulsion],” said Robert Shibley, executive director of the Foundation for Individual Rights in Education.

Shibley’s organization’s mission is to protect individual rights at America’s colleges and universities. Just last week the foundation helped students at Utah’s Dixie State University file a lawsuit against their school for placing unconstitutional restrictions on their First Amendment rights.

“It suggests that they would not allow black people into SAE fraternity or SAE chapter. If that indicates they might be engaged in unlawful discrimination, you can investigate the unlawful discrimination angle of it,” Shibley said. “But actually just saying that isn’t the offense. The offense would actually be engaging in discrimination.”

The removal of the fraternity from campus and the students from their house was legal because it involved an organization that represents the university.

“The university can kick them off campus for a variety of reasons, and there’s a lot of latitude to go that far,” said OU political science professor Keith Gaddie. “The question is, can you go after individuals?”

Gaddie said there is some space for the university to pursue individual punishment for the leaders of the chant. Under Title VI of the Civil Rights Act, individuals who create an intimidating or hostile environment can face consequences, Gaddie said.

“…The question is have these people created an intimidating or hostile environment on the basis of race? And in so doing so, does that create a violation of the individual code of conduct for a student at the university which can lead to expulsion? That’s what has to be determined,” Gaddie said.

Title VI protects individuals from discrimination based on race, color or national origin in programs receiving Federal financial assistance, such as a public university. The goal then becomes proving that the perpetrators created a hostile learning environment for fellow students.

According to Shibley, what showed up on the video is not enough to legally qualify as hostile.

“The harassment has to be based on a protected class and so severe, pervasive and objectively offensive that it effectively keeps the targets of discrimination from getting an education,” Shibley said.

Simply speaking, even if the words are abhorrent, they have not lived up to that scrutiny in previous court cases.

“OU may not censor the students because of their hate speech. Their hateful speech is protected,” said Joey Senat, an associate professor in the Oklahoma State University School of Media and Strategic Communications.

According to Senat, the issue is much deeper than one of race: It is one of free speech.

“People should be wary when government acts to censor speech, even unpopular speech,” Senat said. “Censorship doesn’t solve any problems. It will drive the unpopular ideas underground, but it certainly doesn’t help convince anyone that their idea of another race is inaccurate. It doesn’t enlighten those people. And what it does lead to — that kind of censorship — is people like me standing up to defend racists. I would rather not defend racists. But I’m more concerned too about OU trying to censor ideas that David Boren doesn’t like.”

While the university seeks a rule that will allow them to send the students elsewhere, Senat advocates for a dialogue.

“Those people who hold racist viewpoints are as sincere in their viewpoints as I am in that people should be treated equally and that racism should not exist,” Senat said. “Obviously it does exist, but those racists hold those views to be sincere and punishing them by government punishment does not change their mind. It only reinforces what they hate.”

Boren called the fraternity members disgraceful. He let them know that they had lost the privilege to call themselves Sooners. And he closed his statement by letting them know just how much he would love it if they left.

“They don’t belong here and I don’t want them here … I might even pay personal bus fare for them if they’d go somewhere else,” Boren said.

Schools: University of Oklahoma