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

[gnoitall]

@Richard_Parker

“Hostile learning environment” has indeed been the theory advanced by universities in these cases, and universally rejected by the courts. It could always be said than any given offensive speech is being punished not because of the speech but because of the effect of the speech. Unless the speech constitutes a “true threat” or is obsence or meets some other narrow exception, it is protected.

I’m no lawyer, and frankly can’t be arsed to google it much, but I’m not aware of any precedent supporting your assertion, or OU’s for that matter. If you’re aware of such, it would be a positive contribution to the thread for you to cite. Otherwise, we’re just down to argument clinic, and that’s boring and unproductive.

[Richard_Parker]

I already posted it upthread.

[Bricker]

@gnoitall

I’m no lawyer, and frankly can’t be arsed to google it much, but I’m not aware of any precedent supporting your assertion, or OU’s for that matter. If you’re aware of such, it would be a positive contribution to the thread for you to cite. Otherwise, we’re just down to argument clinic, and that’s boring and unproductive.

No it isn’t.

As Richard Parker already cited above, Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F. 2d 386 (4th Cir 1993) puts the hostile environment / culturally diverse theory to rest convincingly.

In Sigma Chi, fraternity members participated in an “ugly woman,” contest, in which members dressed as women:

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.

There is no direct evidence in the record concerning the subjective intent of the Fraternity members who conducted the contest. The Fraternity, which later apologized to the University officials for the presentation, conceded during the litigation that the contest was sophomoric and offensive.

Following the contest, a number of students protested to the University that the skit had been objectionably sexist and racist. Two hundred forty-seven students, many of them members of the foreign or minority student body, executed a petition, which stated: “[W]e are condemning the racist and sexist implications of this event in which male members dressed as women. One man in particular wore a black face, portraying a negative stereotype of black women.”
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[University] Vice President Earl G. Ingram’s affidavit represented:

(6) The University’s affirmative action plan is a part of an overall state plan designed, in part, to desegregate the predominately “white” and “black” public institutions of higher education in Virginia… The behavior of the members of Sigma Chi that led to this lawsuit was completely antithetical to the University’s mission, as expressed through its affirmative action statement and other pertinent University policies, to create a non-threatening, culturally diverse learning environment for students of all races and backgrounds, and of both sexes.

Dean Bumgarner, in his affidavit, stated that the University

does not and cannot condone this type of on-campus behavior which perpetuated derogatory racial and sexual stereotypes, tends to isolate minority students, and** creates a hostile and distracting learning environment. **Such behavior is incompatible with, and destructive to, the University’s mission of promoting diversity within its student body [and] sends a message to the student body and the community that we … are not serious about hurtful and offensive behavior on campus.

(emphasis added by me)

But as the Fourth Circuit observed:

If this were not a sufficient response to the University’s argument, the principles relating to content and viewpoint discrimination recently emphasized in R.A.V. v. City of St. Paul, (internal citations omitted), provide a definitive answer. Although the Court in St. Paul reviewed the constitutional effect of a city “hate speech” ordinance, and we review the constitutionality of sanctions imposed for violating University policy, St. Paul’s rationale applies here with equal force. Noting that St. Paul’s city ordinance prohibited displays of symbols that “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” but did not prohibit displays of symbols which would advance ideas of racial or religious equality, Justice Scalia stated: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”

As evidenced by their affidavits, University officials sanctioned Sigma Chi for the message conveyed by the “ugly woman contest” because it ran counter to the views the University sought to communicate to its students and the community. The mischief was the University’s punishment of those who scoffed at its goals of racial integration and gender neutrality, while permitting, even encouraging, conduct that would further the viewpoint expressed in the University’s goals and probably embraced by a majority of society as well. “The First Amendment generally prevents government from proscribing … expressive conduct because of disapproval of the ideas expressed.”
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We agree wholeheartedly that it is the University officials’ responsibility, even their obligation, to achieve the goals they have set. On the other hand, a public university has many constitutionally permissible means to protect female and minority students. . . . The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.

(emphasis added)

[Saint_Cad]

As for life-long notoriety: quickly and without looking name the three Duke lacrosse players.
Americans have a very short memory.

[Bricker]

@gnoitall

I’m no lawyer, and frankly can’t be arsed to google it much, but I’m not aware of any precedent supporting your assertion, or OU’s for that matter. If you’re aware of such, it would be a positive contribution to the thread for you to cite. Otherwise, we’re just down to argument clinic, and that’s boring and unproductive.

So, you’re in General Questions, you admit you have no particular expertise, you can’t be “arsed” to research the issue yourself or even read the citations provided upthread, but that won’t stop you from asserting that your answer to the factual question is correct, as opposed to the view of someone who is lawyer, did do the research, and posted the citation to the results of that research?

Is that about the size of it?

[Bricker]

@Saint_Cad

As for life-long notoriety: quickly and without looking name the three Duke lacrosse players.
Americans have a very short memory.

Reed Seligman, Colin Finnery, David Evans. Their accuser was Crystal Mangnum, and the District Attorney who withheld material exculpatory evidence and was ultimately disbarred was Mike Nifong.

[Loach]

@get_lives

I think it’s very telling that some of you believe this to be cut-and-dried. It says a lot about you.

I believe it does. Thank you.

I also believe in the rights of the Westboro Baptist Church to protest funerals. The KKK to march. The OWS groups to march. Anyone who doesn’t break the law should not be punished by a government agency for their speech. No matter how much I disagree with what they are saying. That is what it says about me.

[Frylock]

@Dewey_Finn

No. Parker Rice is a nineteen-year-old freshman and Levi Pettit is a twenty-year-old sophomore.

Hm. Those are not the first guys I’d’ve looked at expelling.

[Bricker]

@get_lives

I think it’s very telling that some of you believe this to be cut-and-dried. It says a lot about you.

It says I can accurately report the state of current First Amendment jurisprudence.

[Dewey_Finn]

@Frylock

@Dewey_Finn

No. Parker Rice is a nineteen-year-old freshman and Levi Pettit is a twenty-year-old sophomore.

Hm. Those are not the first guys I’d’ve looked at expelling.

They’re probably the first who can be specifically identified. Also, one of them is the guy in a tuxedo in the aisle leading the chant.

[John_Mace]

@get_lives

The First Amendment’s intent was about protecting people from government retaliation against criticism of the government.

@LSLGuy

I think the thing a lot of us here are ignoring is that the attitudes expressed by those students are held by a large majority of white citizens of all social classes in both Oklahoma and Texas.

Since this is GQ… cite, and cite?

[Really_Not_All_That_Bright]

@LSLGuy

IMO, the right response is to reinstate the students because protection from government sanction for free speech is absolute & sacrosanct. That is a larger, more important principle than “hostile learning environment”. And much more directly applicable. The ACLU should get behind the students, while publicly holding its nose a bit.

Then watch what happens next.

I am fairly sure the university will benefit far more from the perception that it took immediate and substantial action against the students involved than it will be harmed by the subsequent lawsuits. We all know that no matter what happens, the students aren’t going to seek reinstatement if they sue.

[Enola_Gay]

@Really_Not_All_That_Bright

I am fairly sure the university will benefit far more from the perception that it took immediate and substantial action against the students involved than it will be harmed by the subsequent lawsuits. We all know that no matter what happens, the students aren’t going to seek reinstatement if they sue.

Right, but the bigger issue as several in this thread have pointed out is that the university is trampling the First Amendment.

It seems like almost everyone would agree that the frat boys’ chant was appalling & offensive, but should a government entity (the university in this case) wield its power to suppress or censor them? The whole point of the First Amendment is to prevent the government from doing that.

[Really_Not_All_That_Bright]

I am not entirely convinced that this is “trampling the First Amendment”. Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University is in some ways very much on point - that is, it involves a university sanctioning a fraternity over racist conduct. In others, it’s not. More particularly, it involved offensive but not threatening conduct.

Richard Parker correctly notes that the reference to “hanging a nigger from a tree” is not a “true threat” of the kind that falls outside the scope of the First Amendment. However, a university is not necessarily as constrained here as everyone seems to assume, and I think a university may be justified in punishing “untrue threats” where other government authorities are not. SCOTUS has long recognized that public high schools may punish students from speech on the basis of its content, apparently on the grounds that minors might hear naughty words. There were probably minors on the SAE bus. Beyond that, SCOTUS and lower courts seem to have trouble drawing bright lines between high school and university students in free speech cases.

For example:

Our university cases have dealt with restrictions imposed from outside the academy on individual teachers’ speech or associations, Keyishian v. Board of Regents, 385 U.S. at 591-592; Shelton v. Tucker, supra, at 487; Sweezy v. New Hampshire, supra, at 236; Wieman v. Updegraff, 344 U.S. at 184-185, and cases dealing with the right of teaching institutions to limit expressive freedom of students have been confined to high schools, Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 262, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 677, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 504, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969), whose students and their schools’ relation to them are different and at least arguably distinguishable from their counterparts in college education.

Bd. of Regents v. Southworth, 529 U.S. 217, 238 n.4, 120 S.Ct. 1346, 1359 (2000).

[Lemmytheseal2]

@ZPG_Zealot

No, it isn’t. There is plenty of music that’s offensive. Some of the amateur rap I’ve heard performed live definitely qualifies as hate speech and contains threats of rape toward women and violence toward other minorities. So what, if they rehearsed and performed it? Maybe they were reenacting some old frat song from the 1920’s their great grandfathers’ taught them. Check out some historical folksongs, you will find lots of racists, sexist, classist, etc. music. People may be offended by what the students did, but it didn’t break any bones or pick anyone’s pocket (Jeffersonian freedom of speech reference for the uninformed).

Yeah, but you were referring to anyone who listened to something you deem offensive. That’s different.

[get_lives]

@Bricker

It says I can accurately report the state of current First Amendment jurisprudence.

You seem to be confused about whether I was arguing a legal point. I couldn’t care less if their speech was protected. Western Europe is FAR more restrictive of hate speech, and their societies have somehow not devolved into dictatorships. I think we could safely curtail hate speech without losing any of the real intent of the First. You know the Founders’ intent was protecting citizens’ speech against the government, right?

[Dewey_Finn]

@get_lives

You seem to be confused about whether I was arguing a legal point. I couldn’t care less if their speech was protected.

But the title of the thread is, “Why weren’t University of Oklahoma students protected by the First Amendment?”

[John_Mace]

@get_lives

You know the Founders’ intent was protecting citizens’ speech against the government, right?

Second time you’ve posted this. It certainly was one of the reasons, but we’ll need a cite that it was the only reason.

I think we could safely curtail hate speech without losing any of the real intent of the First.

That could be called an interesting opinion, I suppose, but how is it a factual answer to a question being asked?

[ZPG_Zealot]

@Lemmytheseal2

Yeah, but you were referring to anyone who listened to something you deem offensive. That’s different.

So I suppose if the frat boys recorded the chant with someone else doing the vocalization and played the recording outloud, you would be just fine with what they did?

[ElvisL1ves]

@Really_Not_All_That_Bright

However, a university is not necessarily as constrained here as everyone seems to assume, and I think a university may be justified in punishing “untrue threats” where other government authorities are not.

The actual wording of the cause from the official letter of expulsion was that they had “created a hostile educational environment for others”, not that there had been a specific threat or even a general one.

It also said they could appeal - to the schools’ EEO office.