Following the surfacing of a video showing members of one fraternity at University of Oklahoma (OU) chanting racial slurs and references to lynching, school president David Boren expelled two students—and some experts are asking whether the decision was constitutional.
On Tuesday, Boren sent a letter obtained by Gawker to two students, telling them, "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." Boren announced his decision via Twitter.
Two days ago, Boren declared "all ties and affiliations between the university and the local Sigma Alpha Epsilon (SAE) chapter... severed" and said the fraternity will not be permitted back on campus during his time in office. Additionally, the school began an investigation to determine whether individual SAE members may face disciplinary action for violations of the school's anti-discrimination policies.
Members of SAE had until midnight Tuesday to move out of the SAE building—which was vandalized on Monday—and find new housing arrangements.
The fraternity's national office released a statement late Sunday, apologizing for the "unacceptable and racist behavior" of the individuals and saying they are "disgusted that any member would act in such a way." The national office also closed the OU chapter and suspended its members.
First Amendment protections
Most higher education institutions have codes of conduct, says Robert Nelon, a lawyer at Hall Estill. He argues that "the university's right to shut down the fraternity, or to punish those students that they can identify who were involved in the incident, rests more on the university's right to regulate student conduct than it does on constitutional issues."
Related tools: Social media and student codes of conduct
But while many universities and colleges maintain codes of speech, federal courts consistently rule them as First Amendment violations, says Joey Senat, an Oklahoma State University media law professor, adding, "There can be a speech code on the books, but that doesn't mean it's enforceable."
"If [Boren] kicks them out of school, he's probably facing a lawsuit," he says.
According to the Foundation for Individual Rights in Education (FIRE), the U.S. Supreme Court "has ruled time and time again" that public institutions such as OU cannot punish individuals for First Amendment-protected expressions, "no matter how repugnant it might be," adds Peter Bonilla, FIRE's Individual Rights Defense Program director.
"[T]here is no First Amendment exception for racist speech, or exclusionary speech, or... for speech by university students that 'has created a hostile educational environment for others,'" writes Eugene Volokh, a law professor at University of California-Los Angeles, for the Washington Post's "The Volokh Conspiracy."
Only when speech represents a "true threat" directed at a specific individual, a statement "intended to solicit a criminal act" or "create a conspiracy to commit a criminal act" is it exempt, according to Volokh.
Civil rights guidelines
But some experts say the university may be able to punish individuals involved in the chant. Keith Gaddie, an OU political science professor, told The Oklahoma Daily that Title VI of the Civil Rights Act allows punishment for people who create an intimidating or hostile environment.
Gaddie explains that, in the event of a lawsuit, the university would want to prove that the expelled individuals were creating a hostile environment on the basis of race.
Two attorneys specializing in First Amendment rights told the Tulsa World that OU was within its rights when it expelled the students. Boren says that legal staff are investigating and that he is taking steps to be "individually fair" to students who were on the bus (Sherman, Tulsa World, 3/10; Biddle, Gawker, 3/10; "The Torch," FIRE, 3/10; Volokh, "The Volokh Conspiracy," Washington Post, 3/10; Soave, "Hit & Run," Reason, 3/10; Hollingsworth, Oklahoma Daily, 3/10).
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