University of Oklahoma (OU) President David Boren has decided to expel two students, who were members of the university’s now-shuttered chapter of the Sigma Alpha Epsilon (SAE) fraternity, for their alleged “leadership role in leading a racist and exclusionary chant,” as shown in a video posted online recently. As FIRE wrote on The Torch yesterday, absent additional elements like true threats, the expression shown in the video is protected under the First Amendment, and punishing students for their participation in the chant is almost certainly unconstitutional.
Constitutional law professor Eugene Volokh reminds Washington Post readers of this important point in a column published today:
[R]acist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993).
Volokh also clarifies that “speech doesn’t lose its constitutional protection just because it refers to violence.” Speech will lose protection if it falls into one of the few and narrowly defined categories of unprotected speech, like true threats or incitement to imminent lawless action. But the chant in the video does not fall into any of these unprotected categories.
The reasons to resist punishing these students go beyond the university’s legal obligations: FIRE Executive Director Robert Shibley explains today in USA Today why refraining from punishing or censoring even speech that many find highly offensive ultimately allows us to be more effective in the fight against racism:
Free speech has many benefits, but one of the most overlooked is its ability to warn us of truths about the world — especially when we’d rather not hear them. Doesn’t the video tell us something we need to know about the racial attitudes of at least some OU students?
Those who would punish the students are not only overlooking the benefits of robust freedom of expression but also overstating the dangers of allowing offensive speech out into the open:
Censorship isn’t necessary for those who are confident in the truth of their views. It’s a signal of insecurity and displays a fear that if an idea is allowed to be expressed, people will find that idea too attractive to resist. Somehow, college administrators are convinced that if they don’t officially punish racism, their students will be drawn to it like moths to a flame. But there’s simply no reason to expect that. Given the history of campus activism in our nation from the civil rights movement onward, there are myriad reasons to expect the opposite.
The university’s actions also present serious due process concerns. Boren stated in a letter to the students:
This is to notify you that, as President of the University of Oklahoma acting in my official capacity, 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 you disagree with this decision you have the right to contact the university Equal Opportunity Officer to be heard by close of business Friday, March 13, 2015.
As FIRE explains in our freshly updated Guide to Due Process and Campus Justice, students at public universities who are facing expulsion have a right to notice of the charges against them and an opportunity to contest those charges. Boren, however, apparently made his decision to expel the students before affording the students a hearing, spurred by the media storm that followed the SAE video.
FIRE President Greg Lukianoff noted in his book Unlearning Liberty: Campus Censorship and the End of American Debate: “Fraternities consistently produce some of the least sympathetic cases for campus free speech advocates. Incidents like dressing in blackface and Klan robes for a Halloween party, as Tau Kappa Epsilon at the University of Louisville did in 2001, do little to endear fraternities to the public.” So it’s unsurprising that the fraternity has been harshly criticized—and everyone has the right to voice their opinions about SAE, the chant, and the individuals involved in making the video. However, the law is clear: the University of Oklahoma’s expulsion of two students, without due process, simply for their expression of racist sentiment is almost certainly unlawful and should be reversed.