Why weren't University of Oklahoma students protected by the First Amendment?

[Great_Antibob]

@PatrickLondon

Does something similar apply in the US?

Yes, but as a public university, it wouldn’t necessarily apply in this case, at least in the US.

The problem is that it’s a rather big stick with which any “undesirables” could be punished while doing an end-run around discrimination laws.

For example, if protestors staged a sit-in where they chanted negative things about school officials and were generally unruly (but not destructive), should they be disciplined for conduct that may bring the university into disrepute?

Should the Klan be allowed to march in Skokie (though I hate Illinois Nazis)?

There’s a balancing act, and the school may end up being on the wrong legal side of it.

[Lord_Feldon]

This happened awfully quickly. Even without the obvious First Amendment problems, did the university even follow its own rules for expelling these students?

[Richard_Parker]

To provide some more thorough backing since we are in GQ…

Here’s the Supreme Court on the subject in Papish v. Bd. of Curators of Univ. of Missouri, 410 U.S. 667, 670 (1973):

[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’

Here’s an example of a Court of Appeals applying that rule in IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393 (4th Cir. 1993):

Sigma Chi has for two years held an annual “Derby Days” event, planned and conducted both as entertainment and as a source of funds for donations to charity. The “ugly woman contest,” held on April 4, 1991, was one of the “Derby Days” events. The Fraternity staged the contest in the cafeteria of the student union. As part of the contest, eighteen Fraternity members were assigned to one of six sorority teams cooperating in *388 the events. The involved Fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman. He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman’s breasts and buttocks. He spoke in slang to parody African–Americans.

. . .

In this meeting, it was agreed that Sigma Chi’s behavior had created a hostile learning environment for women and blacks, incompatible with the University’s mission. The Dean met again with Fraternity representatives on April 18, and the following day advised its officers of the sanctions imposed. They included suspension from all activities for the rest of the 1991 spring semester and a two-year prohibition on all social activities except pre-approved pledging events and pre-approved philanthropic events with an educational purpose directly related to gender discrimination and cultural diversity. The University’s sanctions also required Sigma Chi to plan and implement an educational program addressing cultural differences, diversity, and the concerns of women. A few weeks later, the University made minor modifications to the sanctions, allowing Sigma Chi to engage in selected social activities with the University’s advance approval.

. . .

The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education. Yet it seems equally apparent that it has available numerous alternatives to imposing punishment on students based on the viewpoints they express. . . . The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.

[get_lives]

Why would these two individuals want to stay at a school that dissolved their beloved fraternity? I would imagine they’d transfer to a school that had an SAE chapter that wanted them.

[Omar_Little]

@get_lives

Why would these two individuals want to stay at a school that dissolved their beloved fraternity? I would imagine they’d transfer to a school that had an SAE chapter that wanted them.

I’m pretty sure that the national SAE organization revoked all of the current OU’s chapter members rights and membership in the SAE fraternity. Even if they wished to affiliate with another chapter on another campus, I don’t think they would be permitted to join.

[buddy431]

@get_lives

Why would these two individuals want to stay at a school that dissolved their beloved fraternity? I would imagine they’d transfer to a school that had an SAE chapter that wanted them.

Because they want to finish the education on the timetable that they were planning on? The education that they have probably already sunk tens of thousands of dollars into?

This isn’t just some minor inconvenience for them. There lives will be set back several years, and they have suffered financial harm. The law is clearly on their side.

In that position, I know that I would sue. I can take a few news articles reminding the world that I’m a racist if it means several years of my life and tens of thousands of dollars.

[aceplace57]

The university over reached. These kids had already paid their Spring tuition, bought textbooks and spent 7 weeks attending lectures. The school had no right to kick them out. Free speech is protected. That includes dumb and insulting speech.

[Acsenray]

@get_lives

I would imagine they’d transfer to a school that had an SAE chapter that wanted them.

I’m almost certain that the national organization will make sure that doesn’t happen. Remember, Sigma Alpha Epsilon itself dissolved the local chapter.

[get_lives]

@aceplace57

The university over reached. These kids had already paid their Spring tuition, bought textbooks and spent 7 weeks attending lectures. The school had no right to kick them out. Free speech is protected. That includes dumb and insulting speech.

Somehow I doubt they’ll want to go back. Unless the school’s faculty, staff, and student body are WAY more racist than I imagine, their time at this school, in the future, would be quite unpleasant.

[Omar_Little]

@buddy431

tens of thousands of dollars.

Not that much. I believe both of these guys are freshman, so they have one semester of credits that should most likely transfer to another institution. I think both of the students are also Texas residents, so they pay the non-resident tuition at OU which is a flat $10,107.75 for the semester, for 12 or more hours for the current semester that they are out of pocket. They don’t have to worry about breaking a lease, as the house they were living in was shut down.

[slash2k]

@buddy431

In that position, I know that I would sue. I can take a few news articles reminding the world that I’m a racist if it means several years of my life and tens of thousands of dollars.

What will it cost if due to adverse publicity they can’t get a well-paying job from a reputable company for many years to come?

See, that’s what Richard Parker alluded to above: the continuing economic harm from being perceived as national disgraces and laughingstocks is not something they could ever recover from the university. Many many companies, banks, law firms, and other potential employers are not going to want to associate themselves with public racists, and the longer this story plays on the national stage, the more likely that the names are going to become notorious.

Reference some of the problems Monica Lewinsky has had obtaining good employment over the past 15 years, for an example of what national notoriety will do to economic prospects.

[Acsenray]

@PatrickLondon

Is the legal freedom of speech intended to protect anyone from all consequences of their exercising it, even if there is no penalty in criminal law?

Trying to think of a comparable situation in UK circumstances, it occurs to me that many organisations here have some sort of general clause in conditions of employment or membership about not bringing the organisation into disrepute. Does something similar apply in the US?

A private entity—such as a private university—would be free to impose such conditions on students.

A government entity would have some right to impose conditions on government employees.

However a government entity—such as a public university—would be far more restricted in what kinds of conditions it could impose on students.

Students have a right of free speech that may not be infringed by the government, and in this case the university is the government.

So, the university will have the right to expel students for certain kinds of violations, big it would not be permitted to punish a student’s mere expression of his views, no mater how repugnant.

Now, there will be some kind of line where something goes beyond pure expression and becomes something else, say, an act of intimidation against another student. On such a case, a university might have a freer hand to punish.

[panache45]

@Acsenray

Now, there will be some kind of line where something goes beyond pure expression and becomes something else, say, an act of intimidation against another student. On such a case, a university might have a freer hand to punish.

This is what I’m wondering about. The chant referred to hanging black men from a tree. Is that not an “act of intimidation against another student”? Could that be seen as an outright threat of violence?

[Acsenray]

@panache45

This is what I’m wondering about. The chant referred to hanging black men from a tree. Is that not an “act of intimidation against another student”? Could that be seen as an outright threat of violence?

If this does go to court, that question might have to be hashed out.

Do you think it was actually a genuine threat of violence?

[Peremensoe]

@Acsenray

Now, there will be some kind of line where something goes beyond pure expression and becomes something else, say, an act of intimidation against another student. On such a case, a university might have a freer hand to punish.

And that was explicitly the case here. The students were not expelled merely for expressing their racism, but specifically for infringing the rights of other students (who had also paid tuition, etc.) to a learning environment free of intimidation and harassment.

[Enola_Gay]

@buddy431

A public university almost certainly does not have the right to punish them. A private organization (like SAE), yes, but public universities are the government. They cannot sue for libel, even when untrue things are said about them. They are subject to Freedom of Information Act requests. They cannot punish students for engaging in constitutionally protected speech (and this speech is certainly constitutionally protected: there was no true threat being conveyed).

They don’t always see themselves as the government, and so they don’t always act like it, but when push comes to shove in court, they are the government, and are restricted in the same way that congress or the police are.

@silenus

It does. A simple skim of the OU Student Code of Conduct shows that they violated it. I would like to see them sue, just to get the constitutional issues settled.

I just skimmed a bunch of other Codes of Conduct from other public universities and all appear to have similar rules regarding hate speech. If I am understanding the responses in this thread correctly, those rules are unconstitutional since these are public universities who use public funds.

I realize the students may not* want *to go back (and probably shouldn’t) but why would public universities have codes of conduct that violate the constitution?

[Gatopescado]

eh…

[ZPG_Zealot]

@panache45

This is what I’m wondering about. The chant referred to hanging black men from a tree. Is that not an “act of intimidation against another student”? Could that be seen as an outright threat of violence?

Apply that standard and everyone who plays vintage Ice-T music has to be expelled.

[Lemmytheseal2]

@ZPG_Zealot

Apply that standard and everyone who plays vintage Ice-T music has to be expelled.

That’s different, and possibly a red herring. These students (let’s stop calling them kids; they are old enough to know better) were actually performing the song, and had clearly rehearsed it. It wasn’t some spontaneous unfunny bullshit.

[Dewey_Finn]

The statement from the university president said that the students “created a hostile learning environment for others.” Presumably this legally justifies the expulsion. And of the two students, one offered his own apology while the parents of the second apologized for him. So I don’t expect them to challenge this.