Expelling students for a racist video feels good, but it might be unconstitutional

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Two students involved with the racist video that came out of the University of Oklahoma (UO) this week have been expelled from the campus, the school's president announced yesterday.


Some might applaud this decision. The video is, after all, beyond defensible. A group of white Sigma Alpha Epsilon fraternity members riding a bus, chanting happily about lynching and using offensive language to about how black men would never be allowed into their organization.

But civil liberties experts are raising serious questions about the constitutionality of the president's move. The university is a public institution, and the students seem to be exercising their freedom of speech, which is protected under the First Amendment regardless of how abhorrent and hateful that speech might be. Under the First Amendment, public institutions cannot limit the freedom of speech in the same way that a private institution can.


In the expulsion letter, UO president David Boren attempted to show that his decision was not based solely on the "speech" part of what the students said, but rather that he was acting based on the environment that the chant created on the campus.

“You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others,” Boren wrote. He told the students that they should seek legal council if they wish.

To some observers, the issue with Boren's approach is that it is conflating two things, one of which is protected: speech and action.

“It appears the university is trying to recast free speech as conduct, characterizing it as creating a hostile educational environment,” Ken Paulson, the President of the First Amendment Center and Dean of the College of Mass Communication at Middle Tennessee State University told TIME. “If that’s upheld, any politically incorrect statement made on campus and amplified by social media could be punished.”


If the decision sticks, it would be the latest incident in what some watchdog groups say is the over-censorship of American campuses in the name of political correctness. The difference would be that because of its proliferation over social media, it could allow unpopular ideas and forms of speech to be considered an action, in and of themselves.


The 2015 report from the Foundation for Equal Rights in Education (FIRE) , a non-profit group aimed at sustaining individual rights on American campuses, found that "universities frequently misapply policies prohibiting threats and intimidation so as to infringe on protected speech."

The report, which surveyed the speech codes of 437 top American schools, also found that "more than 55 percent [of American campuses] maintain severely restrictive, 'red light' speech codes—policies that clearly and substantially prohibit protected speech."


Some of the cases of school censorship are shocking. For instance, a student at Indiana University-Purdue University was found guilty by a campus board in 2007 of “openly reading [a] book related to a historically and racially abhorrent subject." The book he was reading, titled "Notre Dame vs. The KKK: How the Fighting Irish Defeated the Ku Klux Klan," was actually celebrating the defeat of the Klan in a 1924 street fight. After being offended by the cover (which depicted a Klan rally), someone reported the man, which led to the decision, which was later overturned.

Another case from last year involved a pro-Palestinian group being fined for distributing "political" leaflets at Montclair State University in New Jersey.


"Fraternities consistently produce some of the least sympathetic cases for campus free speech advocates," FIRE's President Greg Lukianoff wrote in passage from his recent book that speaks directly to the UO incident. "Incidents like dressing in blackface and Klan robes for a Halloween party, as Tau Kappa Epsilon at the University of Louisville did in 2001, do little to endear fraternities to the public.”

And so it's no wonder the public reaction against the fraternity has been so swift and harsh, FIRE's Susan Kruth wrote in a blog post about the Oklahoma expulsions yesterday.


"However, the law is clear: the University of Oklahoma’s expulsion of two students, without due process, simply for their expression of racist sentiment is almost certainly unlawful and should be reversed," she wrote.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.

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