The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment. Many applauded Boren’s strong stance as a good means to ensure the campus wasn’t a racially hostile place. But others cautioned he had not given sufficient consideration to the students’ First Amendment rights.
College officials have to carefully navigate those competing claims.
Olabisi Okubadejo, a lawyer who specializes in higher education issues in Ballard Spahr’s Baltimore office, writes about the tensions for colleges trying to keep their campuses inclusive even when there’s divisive speech:
“The announcement of the University of Oklahoma’s recent decision to expel two fraternity members who allegedly were involved in chanting a racist anthem on video has ignited widespread discussion at educational institutions nationwide.
At issue, in large part, is the tension that often arises when student organizations engage in race-based conduct — on the one hand, many students and faculty are offended and outraged by the behavior, while on the other hand, perpetrators and individual rights groups vocally claim that the speech is constitutionally protected.Educational institutions are caught in the middle, as they grapple with how to meet dueling obligations under the First Amendment and Title VI of the Civil Rights Act, which prohibits racial harassment.The U.S. Department of Education’s Office for Civil Rights (OCR) in its published guidance to schools makes clear that the mere offensiveness of speech, standing alone, is insufficient to establish a racially hostile environment on campus.Instead, to constitute harassment, when viewed from the perspective of a reasonable person, the speech must be sufficiently serious to deny or limit a student’s ability to participate in the school’s educational program.This often includes a consideration of the age of the students involved.Here, a question that must be answered is whether it is reasonable for a college student to suffer a denial or limitation of the ability to participate in a university program because a peer chooses to sing a racist song.OCR takes the position that the expression of words or thoughts that a person finds offensive generally will not constitute racial harassment unless such a denial or limitation occurs.There has been considerable support for the University of Oklahoma’s actions. Others, though, have cautioned that a closer look is warranted to determine whether the video chant is protected by the First Amendment.While it is not clear based on publicly available information all details upon which the University relied in its decision-making, educational institutions generally have in place procedural protections to ensure that students receive notice of the allegations against them and an opportunity to have the university hear their side of the story.The availability of such processes is critically important in ensuring that decisions are rendered in a fundamentally fair manner.School decision-makers should receive training on maintaining constitutional protections during disciplinary proceedings to ensure that schools do not inadvertently impinge upon these protections as they seek to make their campuses welcoming for all students.Schools across the country regularly face instances where students engage in conduct that may offend other students based upon protected characteristics.While schools may have obligations to take prompt action to address such conduct, part of the institutional response, particularly at public institutions, must include a deliberate inquiry into whether the conduct is legally permitted under the First Amendment, which would limit an institution’s ability to impose discipline.The institution’s inquiry should be timely so that the institution’s own actions do not have a chilling effect on protected speech.Institutions nevertheless have options available to create an inclusive environment on campus for all students, such as conducting educational programming on racial harassment, encouraging inclusive behaviors, conducting climate assessments and monitoring reports of harassment for targeted intervention, and maintaining robust policies and procedures.”