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Experts agree: University of Oklahoma can’t legally expel racist frat boys

Occasionally something so ridiculous happens at a college that observers across the political spectrum raise their voices as one in criticism.

I’m not talking about the universal revulsion at the University of Oklahoma’s now-shuttered Sigma Alpha Epsilon chapter for singing a racist chant on a bus. That was predictable.

More heartening to me is the near-unanimous reaction from law professors and other First Amendment authorities that President David Boren’s quickie expulsion of the chant’s alleged “leaders” was blatantly unconstitutional for a public university.

UCLA’s Eugene Volokh, who has perhaps the highest profile perch among colleagues as a Washington Post blogger, wrote that “there is no First Amendment exception for racist speech, or exclusionary speech,” or even speech that – in Boren’s words – “has created a hostile educational environment for others.”

Erwin Chemerinsky at the University of California-Irvine separately told the Post that the expelled students “would have an excellent chance of succeeding” if they sued the school, “based on what we know from the media.” Which is that they were expelled for singing on a bus, and no other reason, by Boren’s own admission.

Imagine if Boren had expelled members of Alpha Phi Alpha, a historically black fraternity, for singing NWA’s “Fuck tha Police” on a bus, calling it a threat to a police officer. It’s the same conduct in the same venue, but no one would argue these frat members could be expelled.

The University of Chicago’s Geoffrey Stone wrote in the Huffington Post that by any measure, Boren and the school exceeded their authority:

Moreover, like any educational institution, a state university can properly regulate what speech is appropriate in a classroom. Use of the word “nigger” in a classroom when the word is irrelevant to the material being taught can be restricted.

But as the [Supreme] Court made clear in Healy, Papish, and other decisions, a public university generally has no more authority to regulate offensive speech on a campus [than] a city has to regulate offensive speech on a city street. …

This was a great, if difficult, teaching moment. It is a shame that President Boren and the University of Oklahoma taught their community the wrong lesson.

Journalism instructor Will Nevins at the University of Alabama – which had its own scandal last week when a sorority member send a “racially offensive Snapchat” – writes at AL.com:

For the purposes of the Constitution, public universities like Oklahoma and Alabama operate as an extension of their respective state governments. 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 of the rights guaranteed under the First Amendment. …

Acting with righteous vengeance and the might of state institutions is a simple and intellectually seductive idea, but that does not make it right. At Oklahoma and Alabama, no matter how much we may dislike it, the Constitution requires an allegiance to higher principles.

Among those who aren’t legal experts, Blake Neff at The Daily Caller points out the obvious to anyone who can read: The way Boren expelled these students doesn’t begin to comport with the school’s official policy.

Oklahoma, like most universities, has a student conduct code outlining the reasons students can be disciplined by the school. The code also has an appendix explicitly listing the procedures to be followed when a student is accused of misconduct. There is no listed procedure allowing the school’s president to unilaterally punish any student, let alone expel them. Instead, there is a clear process to be followed, with extra safeguards for students facing expulsion that would be virtually impossible to meet in the two days. …

And even if the students’ involvement with the video is not in doubt, they are promised the opportunity to show remorse, suggest mitigating circumstances, or offer other forms of defense.

Instead, Boren appears to have overridden these procedures, and it could end up costing him, personally.

As in, he could be sued for damages personally, in addition to the school.

The lone dissenter to this consensus, from what I’ve seen in the media, is Saint Louis University’s Justin Hansford, whose specialties don’t include First Amendment law but who is heavily involved in activism responding to the Ferguson police shooting.

Perhaps ignorant of the constitutional amendment that protects its work, Oklahoma NPR affiliate KGOU reached out to non-expert Hansford for comment, and he blithely ruled the First Amendment irrelevant to the situation:

Nobody has the right to college, or even the right to education, in the United States, so more often than not, when you’re looking at a decision to expel a student, you’re looking at the violation of the terms of a contract that they signed when they agreed to attend the university.

The timing of the expulsions was perfect for the Foundation for Individual Rights in Education, which released the second edition of its Guide to Due Process and Campus Justice this week at a reception on Capitol Hill featuring the Bloomberg View writer Megan McArdle. It was surreal to see CNN covering the expulsion – as clear a due process violation as you’ll see in the national news – as we hobnobbed and waited for new appetizer trays to come out.

(FIRE itself has a helpful analysis that curiously notes the Oklahoma branch of the ACLU credits the school with following due process. Huh?)

If you want a quick-and-dirty primer why this is such an open-and-shut case – if the expelled students go through with a suit – the Post looks at a nearly identical case from more than 20 years ago that ended in favor of the punished frat.

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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IMAGE: Donkey Hotey/Flickr

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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