Decades later, the same ugly matters have risen once more. The basic facts: A video showing Sigma Alpha Epsilon members chanting “There will never be a n—– SAE” saturated the Internet on Sunday. The campus chapter was immediately closed and, following a mad scramble among journalists and online sleuths, the students leading the cheer were identified and issued apologies.
University of Oklahoma President David Boren has since severed ties to the powerful national fraternity, expelling two students he said “played a leadership role” in the racist chant. They “created a hostile learning environment,” Boren asserted in a statement. The chant, which he called “exclusionary,” was not only “heard by those on a bus, but also impacted the entire university community as it was also distributed through social media.” It’s not known whether the students, or others who might be disciplined later by Oklahoma, might sue.
But the expulsions immediately struck constitutional law experts such as professor Eugene Volokh, of the University of California at Los Angeles and the Volokh Conspiracy blog, as strange. Did the University of Oklahoma, a public institution, just punish speech that, while clearly abhorrent, was protected under the First Amendment? Was this a violation of the Constitution?
Private institutions — like Sigma Alpha Epsilon — can freely punish speech that breaches their codes or standards. But a public institution such as the University of Oklahoma, which takes public money, operates as an arm of the government under the law. “So, in effect, it’s not a university punishing a student for a racist video or social media post, it is the state itself acting against an individual — a person, importantly, with all the rights guaranteed under the First Amendment,” wrote the University of West Alabama’s Will Nevin on AL.com.
In theory, the University of Oklahoma, which cannot discriminate “on the basis of race” in accordance with Title VI of the Civil Rights Act, could make the argument that this speech violated its code of conduct, thereby giving it the authority to expel the students. And indeed, the University of Oklahoma lists “abusive conduct” under “prohibited conduct” in its 2015 Student Rights and Responsibilities Code.
It defines this abuse as “unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.” It adds: “Simple teasing, offhanded comments and isolated incidents (unless extremely serious) will not amount to abusive conduct.”
But does this code clash with the First Amendment? That’s where things get murky. “These situations are very, very challenging for universities,” Kevin Reed, vice chancellor of legal affairs for UCLA, told the Los Angeles Times.
“Yes, the students could bring a suit based on the First Amendment challenging their expulsion,” constitutional scholar Erwin Chemerinsky, dean of the law school at the University of California at Irvine, told The Washington Post late Tuesday evening. “Based on what we know from the media, I think they would have an excellent chance of succeeding.”
There is, however, some precedent for such a situation, albeit not one that’s binding in Oklahoma. In the early 1990s, Sigma Chi sued George Mason University in Virginia, challenging what it perceived as an infringement on its civil liberties. This case, cited by some legal scholars on Tuesday, would perhaps bolster any claim that the expelled students or fraternity may consider in the coming days.
Here’s what happened: On April 4, 1991, the fraternity held what it called an “ugly woman contest” inside the student union. Each frat brother entered in the competition would be assigned to one of six participating sororities. In addition to overt sexism, the skit was also said to be racist. “One member dressed as an offensive caricature of a black woman,” a legal opinion said. “He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman’s breast and buttocks. He spoke in slang to parody African Americans.”
Students immediately protested the contest. More than 200 signed a petition condemning its “racist and sexist implications.” The school administration swooped into action, and the dean of student services held a meeting with the student leaders who agreed the contest had “created a hostile learning environment,” according to the opinion. So the dean suspended the frat’s activities for the 1991 spring semester and placed it on probation for two years — and the frat sued the next year.
A trial court entered a summary judgment in favor of the fraternity, and the university appealed the decision to the U.S. Court of Appeals for the 4th Circuit, based in Richmond. “The answer to the question of whether the First Amendment protects the Fraternity’s crude attempt at entertainment … is all the more difficult because of its obvious sophomoric nature,” the court said, expressing admiration for the university’s desire to maintain a harmonious campus.
But, it said, that desire couldn’t infringe upon rights bestowed by the Constitution. “The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism. … On the other hand, a public university has many constitutionally permissible means to protect female and minority students. … The First Amendment forbids the government from ‘restrict[ing] expression because of its message [or] its ideas.”
Which, according to legal scholars, is exactly what the University of Oklahoma did on Tuesday.
More from Morning Mix