There Might Be A Big Legal Problem With The Decision To Expel 2 Oklahoma Students For Racist Remarks

March 11, 2015

By Peter Jacobs at Business Insider

On Tuesday, the University of Oklahoma expelled two students for leading a racist fraternity chant that has brought negative attention to the school from across the US.

Members of the Oklahoma Sigma Alpha Epsilon chapter were seen chanting about lynchings and using racist epithets in a video leaked online Sunday. Even before the decision came down, the school’s president, David Boren, decried the “disgraceful” and “reprehensible” behavior by the SAE members.

But this might not be the end to these students’ education in Norman, Oklahoma. The swift expulsion might have opened up the school to claims that it violated the students’ right to due process or their First Amendment rights, as The Chronicle of Higher Education notes.

The expelled OU students were not given any notice of the allegations and therefore could not contest them, according to the civil-liberties advocacy group Foundation for Individual Rights in Education, known as FIRE. Additionally, FIRE states, the students didn’t get a hearing before their ouster.

It’s unusual for university presidents to offer up their own brand of justice as quickly and decisively as Boren has with the SAE members. The OU president’s strong response may have been influenced by the appearence of video evidence, according to The Chronicle, which is often missing from campus cases.

Even with the video, though, the student’s First Amendment rights might have been violated.

“If the extent of it is what we see in those 11 seconds of video, I don’t see a constitutional basis for [expulsion],” FIRE Executive Director Robert Shibley told OU student newspaper The Oklahoma Daily. “It suggests that they would not allow black people into SAE fraternity or SAE chapter … But actually just saying that isn’t the offense. The offense would actually be engaging in discrimination.”

The university and the national SAE fraternity have both taken action against the chapter, which has been closed on the Oklahoma campus. According to The Oklahoma Daily, there are no concerns about the legality of the closure, due to the organization’s connection to the university.

Boren appears to be taking a different approach to the expulsions than just a straightforward offensive speech claim.

In his letter to the expelled students, he wrote, “I have determined that you should be expelled from this university effective immediately. You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”

If challenged, this language seems to line up with arguments citing Title VI of the Civil Rights Act, which prohibits discrimination based on race.

“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,” OU political science professor Keith Gaddie told The Oklahoma Daily.

Similar arguments have been used by universities to punish student racism in the past, but the charges do not always stick.

In 2001, Auburn University indefinitely suspended 15 students who wore Ku Klux Klan uniforms and blackface to fraternity Halloween parties, The Chronicle notes. In his announcement, then-Auburn Interim President William F. Walker said, “The continued presence of these students in the university community poses an immediate threat to the well-being of the university and we’re taking that action.”

However, an Alabama judge ordered the university to reinstate most of the students weeks later, according to The Chronicle. The two fraternities involved were back on campus within the year. A lawyer for the fraternity members told The Chronicle that the only punishment the students ultimately underwent was sensitivity training.

We have reached out to the University of Oklahoma about concerns over the students’ expulsion and will update with any statement we receive.

Schools: University of Oklahoma