ACLU: Hey, um, you guys? The OU SAE expulsions actually aren’t constitutional.

So, the ACLU is finally getting around to doing their job, here.

As a state-run institution of higher education, the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university. Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such. Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter.  We are closely monitoring the situation and will appropriately respond to new details as they emerge. In the meantime, we stand in solid support of the brave and thoughtful students whose public dialogue on race and the rights of all minority students in response to the incident have embodied the spirit of the First Amendment.

Now, before you get all upset and put some crazy comment here, stop and take a breath. I’m not condoning the bird-brained students who said the things they said. They were dopey, hateful, and base. Now that I think of it, I actually kind of like my insult of “bird-brained” there. That may be my new insult for people these days. Anyway, I digress…

Did you stop and take a breath? Ok.

Despite saying bird-brained things, these students clearly can’t be punished in this summary form, and the ACLU is finally coming around to saying the correct position. Before you jump all over me for “siding” with these morons, let me clarify: I am not siding with these idiotsI am siding with the rule of law. Unfortunately, defending free speech necessarily requires defending disagreeable, foul, unpopular, and yes, bird-brained speech. That’s kind of the point.

If you only support free speech that you agree with, you’re not a free speech advocate – you’re a hack.

56 thoughts on “ACLU: Hey, um, you guys? The OU SAE expulsions actually aren’t constitutional.

  1. James Cross

    A good popular introduction to the First Amendment is Freedom for the Thought That We Hate: A Biography of the First Amendment by Anthony Lewis (2007).

    Reply
  2. clark surratt

    Bryan,
    Have the courts clearly ruled that an individual does not surrender any basic constitutional rights by joining an organization that might require some forfeiture of certain rights as a condition for membership or enrollment? In this case there are two potential organizations: the university and the fraternity.

    Reply
    1. Bryan Caskey Post author

      Yes. Public universities are bound by the First Amendment, as they are organs of the government. Private entities (such as SAE) are not.

      The President of OU made a big mistake by publishing a letter that kicked these guys out of school. First, he made it explicitly clear that he was doing so because of their speech. Second, he violated the code of conduct that OU has for expelling students. So there’s also a due process argument here. It’s possible that he could have exposed himself to personal liability, here.

      Reply
      1. Bryan Caskey Post author

        Initially, it may be hard to grasp in the context of such culturally-unacceptable speech. However, if you change the nature of the speech, it becomes quite clear.

        As a hypothetical: Could the University of South Carolina require Kathryn (as a condition of her attendance) refrain from supporting abortion rights?

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  3. Bob Amundson

    The students’ rights to free speech or the University’s obligation to uphold Title VI, Civil Rights Act of 1964 (which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance). As President John F. Kennedy said in 1963: “Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.”

    I bet attorneys Bryan and Kathryn could argue either side if the price was right!

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    1. Bryan Caskey Post author

      Well, if OU wanted to pay me my hourly rate to argue the losing side, I guess I would. I’d probably encourage them to settle the case because I don’t think it wouldn’t make any difference I or if Clarence Darrow argued the case for OU. They would lose this one.

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    2. Bryan Caskey Post author

      Where are the public funds here? The University isn’t acting. The individual students are. Maybe the University could not be forced set up a racist student organization and fund it, but I don’t think they can punish students for being racists.

      Again, go with another viewpoint. Could the University summarily expel the students if they had been singing communist songs? Clearly not.

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        1. Bob Amundson

          I probably should have been a lawyer instead of a public administrator; as my wife knows all too well, I just like to argue.

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    3. Kathryn Fenner

      Speech isn’t discrimination. Title VI doesn’t apply here.
      Now, if the frat, say, discriminated against pledges on a racial basis, it would. Mere speech is not discrimination.

      Reply
      1. Bob Amundson

        I am not an attorney, but I am a good researcher. This is the thinking of Noah Feldman, a professor of constitutional and international law at Harvard, from an article in the Chicago Tribune on March 11, “Balancing the First Amendment vs. Racist Chants at the University of Oklahoma.”

        OU President Boren used the words “”hostile educational environment,” and “(U)nder federal anti-discrimination law, as interpreted by the Department of Education, a university has an affirmative duty to guarantee students an educational environment in which they are free of hostility based on race or sex.”

        Later in the article: “So Boren was saying that the students are being expelled not for their opinions per se, but because their speech was a form of discriminatory conduct that would create a hostile educational environment for black students. Given that the speech was literally designed to inculcate the value of racial discrimination by making pledges recite their commitment never to admit a black member to the fraternity, this conclusion seems plausible. Removing the chant leaders from campus is aimed to fulfill the educational goal of creating a nonhostile educational environment.”

        Feldman focuses on Title IX, I have heard others focus on Title VI. There is plenty of room to argue both sides, according to my research.

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          1. Bob Amundson

            If you were hired by OU to defend their actions, my guess is you would use both in your defense of the University. Title VI may resonate more than Title IX to someone else.

            But my point is I can see both sides; it is not a “slam dunk” for either, and most likely will end up in the courts.

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        1. Bryan Caskey Post author

          I understand your point, but “creating a hostile environment” is not an exception to the First Amendment. Take a look at this case. Here’s the takeaway:

          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. 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. We must emphasize, as have other courts, that “the manner of [its action] cannot consist of selective limitations upon speech.” St. Paul, ___ U.S. at ___, 112 S.Ct. at 2548; see also Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (invalidating a ban on residential picketing that exempted labor picketing); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970) (invalidating a law that allowed wearing military uniforms only in dramatic portrayals that did not “tend to discredit the military”). The First Amendment forbids the government from “restrict[ing] expression because of its message [or] its ideas.” Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.

          The “hostile environment” argument doesn’t win.

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  4. Mark Stewart

    So what if the President of the University had instead said “we are not expelling the students because of their hateful speech, we do so in response to their unacceptable actions which by their nature create and spread an environment of intimidation, fear and discrimination” ?

    The First Amendment, and its natural limitations, is like good manners to me: It isn’t what you say but how you say it that matters. All of our rights are qualified by their impacts on the people around us – ie, they have the same rights as we do. Life is always a state of tension between opposing forces.

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    1. Doug Ross

      “unacceptable actions which by their nature create and spread an environment of intimidation, fear and discrimination” ?”

      Singing a song within a small group of white people spreads an environment of intimidation, fear, and discrimination? How? Did they sing it to black people? Saying something stupid in private is a lot different from saying in public or DOING something.

      If I walk around in public singing some of the more N-word heavy hip hop songs, am I doing something wrong?

      It was as stupid song sung by stupid people. Nobody was harmed.

      Reply
      1. M.Prince

        “Saying something stupid in private is a lot different from saying in public or DOING something.”

        As one of our Big Data gurus said: Privacy is dead. Get over it.

        Reply
          1. Kathryn Fenner

            I believe that the entire community was harmed, especially the black members. Such actions poison the atmosphere.

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            1. Doug Ross

              Define “harmed”. Feelings hurt? Lowered self esteem for not being allowed in a fraternity? Really? All those black students who WANTED to join SAE and now know they were “black”balled are crying in their dorm rooms, missing out on the keggers with the AOPi’s?

              You can only be offended by words if you choose to be.

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            2. Doug Ross

              I’d feel more concerned about this if I didn’t know that most of the black (and white) students on campus listen to music full of the N-word, violence, and general misogyny. Apparently those words are not “harmful” when self-inflicted.

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            3. Doug Ross

              And OU routinely has allowed black (and white) football players to remain in school after committing acts of violence. But, no, those words sung by the SAE’s are REALLY harmful to them.

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            4. Kathryn Fenner

              A white, middle-class empathy-challenged American man probably would find it difficult to understand what it’s like for folks without his privilege.

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            5. Kathryn Fenner

              I stand by what I said. I cannot explain in words you would understand how damaging that song can be for those of us who are more sensitized to such things.

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            6. Doug Ross

              Try me. I have a large vocabulary. I want to FEEL the pain suffered by black people who hear a bunch of young frat boy idiots sing a stupid song. I want to hear one of the victims explain how SAE’s views on blacks impacts them.

              Then I will go and watch a Comedy Central Roast where racist jokes are told by white comedians to black people and everyone laughs.

              How does a middle aged white woman of privilege even dare to speak for black people’s response to SAE’s stupidity? That’s like Al Sharpton complaining about the choice of music at the SC Philharmonic.

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            7. Doug Ross

              Ah, yes, Mr. Prince.. . if I want to get educated by Youtube, I’ll let you know. Do you have a cereal box that I can read as well to further my education? or maybe a Bazooka Joe comic I can use to expand my knowledge of culture?

              What other group uses a derogatory term to label itself? Kanye West and Jay Z became millionaires using the N-word.

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            8. Doug Ross

              Kathryn – I am (and have been) a minority in my workplace for the past decade. We all get along perfectly fine. If you felt persecuted in the past, I hope you spoke up with the same passion as you feel for your fellow black brothers and sisters over frat boys singing a song in private.

              I’m still waiting to see the first person identified who was harmed. Not angered, not disgusted, actually harmed.

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    2. Bryan Caskey Post author

      Two things: First, I think there’s still a due process argument to be made, as the OU President cannot unilaterally expel a student under the OU Code of Conduct. Second, the speech the students engaged in isn’t “action” it’s speech. Simply calling it action doesn’t make it so. I don’t think you can get outside the First Amendment by saying that certain speech creates a certain “environment”. All speech creates an environment to a certain extent. For instance, my speech here is probably creating a boring environment.

      If you look at R.A.V. v. St. Paul, a unanimous Supreme Court struck down a law that prohibited the display of a symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” R.A.V allegedly (of course) burned a cross in a black family’s front yard and was charged with violation of the statute. Supreme Court said the statute was overly broad.

      For burning a cross!

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            1. Mark Stewart

              I don’t understand the blurring of distinction at work here. If I key your car for taking up multiple spaces or punch you in the face because you were all up in my grill, these are messages. But they are crimes of action.

              If I say to someone who parked across four parking spaces at the airport two days before thanksgiving “you (well someone else clearly) are the biggest a-hole in existence and your mother must wish apportion was legal in the 60’s followed by a few choice and socially umacceptable explicitatives” that is protected speech. However, if I follow you to the terminal continually breaking into your personal space to shout at you in an intimidating manner and say things that imply future action, that is not free speech it is the crime of harassment – or whatever. But it is not me exercising my rights. I have now turned the tables and I am the bad guy.

              I think the distinction was that the Supreme Court saw the statute under which this racist was charged as overly broad because it said offensive symbols cannot be displayed. I do not think one of the justices would have considered the act of burning a cross on someone else’s property to be anything other than a crime, however.

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            2. Kathryn Fenner

              The action of keying a car is damage to the car. I suppose you could get folks for burning crosses in violation of an open-fires ordinance or such–trespass, malicious injury to the lawn…”content neutral” is generally fine. We have laws against punching people in the face. The reason is immaterial.

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  5. bud

    I don’t think taxpayers can be forced to support a public institution that maintains an organization that advocates the violation of not just civil rights but in fact makes threatening overtures of lynching. The advocacy is implied since the organization took no disciplinary actions against the individuals in question. I believe threatening speech is an exception to the first amendment. That would apply to the organization but not the students themselves. I would suggest disbanding the SAE is within the rights of OU since no legal action is leveled at the SAE. SAE is free to buy land and advocate whatever they want (within limits), just not in the name of OU.

    However, expelling the students from OU goes too far. As individuals they have first amendment rights. The organization itself should be held to a higher standard. That’s my layman’s view of the issue.

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  6. Dean Wormer

    The SAE house has been under double-secret probation since the beginning of the year, so this is the last straw.

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  7. Bryan Caskey Post author

    I’ll stipulate that the language used hurt feelings, made people upset, and created a poisoned environment, because…it probably did.

    However, there’s no “hurt feelings” exception to the First Amendment.

    Reply
    1. Kathryn Fenner

      Exactly.
      What about the “hostile environment” part of Title IX, though? I admit to not being up on that….

      Reply
  8. Bryan Caskey Post author

    I’ll give y’all a “hot take”: How about the OU President expelled these students, knowing that it wasn’t exactly legal, because the PR benefit is a bigger plus than the legal liability is a potential downside.

    As in, “better to ask forgiveness than permission”.

    Reply

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