The 10-second video of fraternity members at the University of Oklahoma (OU) singing a racist song has provoked national outrage, the destruction of the fraternity, and widespread calls for harsh punishments, with two students expelled just two days after the video leaked. But one of the United States’ premier campus civil liberties groups says that despite widespread calls for students to be expelled, everything contained within the video is actually constitutionally protected speech.
In the video, students from Sigma Alpha Epsilon (SAE) fraternity sing “There will never be a nigger SAE/You can hang him from a tree/But he’ll never sign with me/There will never be a nigger SAE.”
University President David Boren has already begun implementing a total crackdown on the students involved: Every resident of the fraternity’s house, which is owned by the college, has to leave by midnight Tuesday night.
Besides kicking the students from their housing on short notice, Boren said that if possible he will see all students involved personally punished.
“If I’m allowed to, these students will face suspension or expulsion,” Boren told the press Tuesday. He quickly kept his promise. Shortly after noon, he released a statement announcing that two students who were identified as ringleaders of the song had been expelled.
According to Robert Shibley, executive director of the Foundation for Individual Rights in Education (FIRE), Boren actually lacks the power to punish the students, at least on the basis of the video alone.
“It’s difficult to think of a less sympathetic thing to say,” Shibley told The Daily Caller News Foundation. “However, if this is all there is, the law says they should not be punished.”
Shibley said that OU, as a state university, must observe First Amendment protections of speech. Existing court precedent, he said, protects even violently racist speech. For instance, in the 1992 Supreme Court case R.A.V. v. St. Paul, the Court held that even cross-burning is constitutionally protected speech, unless it is part of a credible, specific threat.
While Boren has suggested the school may be able to punish students based on civil rights legislation that prohibits the creation of a hostile learning environment, FIRE says that claim doesn’t hold water. To have a hostile environment, abusive speech must be sufficiently pervasive and severe as to make an effective education impossible. The SAE song, which was sung in private and has not been proven to be part of a recurring pattern, hardly measures up to that, said Shibley.
The school is also looking into the possibility that fraternity members may have violated civil rights regulations by barring blacks from the fraternity, and Shibley acknowledged that this could potentially have some merit.
“The song was basically ‘We will never have a black person in this fraternity chapter,'” he said. “That would be something the university could investigate.”
But according to Eugene Volokh, a UCLA law professor and expert on the First and Second Amendments, even this may not be enough to allow for individual punishments. In a blog post written Tuesday morning for The Washington Post, Volokh notes that any discriminatory practices by the fraternity would have to be entirely divorced from the constitutionally protected speech seen in the video.
“Even if the group is found to have discriminated against black applicants, and some particular members were found to have participated in that decision, the penalty for that has to be based on the penalties that are actually meted out to people who violate this rule,” writes Volokh. “If discrimination by a group generally leads to a fine against the group, or a reprimand of the participants, or even derecognition of the group, the university can’t then expel students who engage in the same action but who also engage in constitutionally protected speech — that sort of disparate treatment shows that the school is really punishing people for their speech, not for their conduct.”
Shibley said that if any Oklahoma students are suspended or expelled thanks to the video, they could sue and would likely win. He even left the door open to FIRE providing them legal assistance.
“FIRE defends people regardless of the perceived offenses of their speech,” he said. “It’s incumbent on us to do this.”
He added, however, that fraternities would be well-advised to practice prudence without relying solely on constitutional rights.
“Fraternities consistently give us some of the least sympathetic free speech cases we can imagine,” Shibley said. “In many cases, they put themselves in a position where, regardless of how a lawsuit would go, there’s no real solution to what they’ve done.”
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