University of Oklahoma President David Boren’s announcement that two students have been summarily expelled for their role in leading a racist song could blow up in the university’s face, exposing both the school and Boren to hundreds of thousands of dollars in damages and legal fees.
On Tuesday morning, just two days after the video first went public, Boren announced that two students would be expelled for having a “leadership role” in the video’s creation.
Civil liberties advocates have already pointed out that punishing the students could be illegal, saying the song is protected free speech. But even if the offenses warranted expulsion, the taxpayer-subsidized school could be shooting itself in the foot by acting so quickly, and Boren could even be personally exposing himself to thousands of dollars in damages should he be sued by the punished students. (RELATED: The Oklahoma Frat Song Was Racist, But Was Still Free Speech)
In the letter that Boren used to notify each student of their expulsions, he appears to be acting unilaterally as president to immediately expel the students without any prior due process.
“As president of the University of Oklahoma acting in my official capacity, I have determined that you should be expelled from this university effective immediately,” the letter reads. “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.”
If the students object to their punishment, they are told they have until Friday to contact the school’s Equal Opportunity Officer and demand a meeting, which would be held within 10 days.
This form of justice appears to be totally at odds with the established procedures of the university regarding punishing student misconduct.
Oklahoma, like most universities, has a student conduct code outlining the reasons students can be disciplined by the school. The code also has an appendix explicitly listing the procedures to be followed when a student is accused of misconduct. There is no listed procedure allowing the school’s president to unilaterally punish any student, let alone expel them. Instead, there is a clear process to be followed, with extra safeguards for students facing expulsion that would be virtually impossible to meet in the two days.
For example, the code clearly states that conducting conducting investigations is the prerogative of the Student Conduct Office, and that any punishment must be preceded by ordering an accused student to attend a “mandatory meeting” to hear and, if the student wishes, answer the allegations against them. Students have at least a five-day window to have this meeting, unless prompt action is “essential” due to a substantial safety concern or the imminent end of a semester.
Student Conduct can only suggest a punishment following this mandatory meeting, and if the student disagrees, the student is allowed to request a full hearing, which is not an appeals body but rather assesses the case independently.
In cases involving a possible expulsion, even more protections exist, ensuring the accused the right to an attorney and the opportunity to cross-examine witnesses against them, as well as present evidence on their behalf. And even if the students’ involvement with the video is not in doubt, they are promised the opportunity to show remorse, suggest mitigating circumstances, or offer other forms of defense.
Instead, Boren appears to have overridden these procedures, and it could end up costing him, personally.
Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, said that it is almost unprecedented for a public university president to unilaterally expel a student without a hearing or other opportunity to dispute the allegations against them.
“Students in public universities are entitled to some basic type of due process,” Harris told The Daily Caller News Foundation. Immediate expulsions that override due process, she said, could “typically only be permissible where people are deemed a clear and present physical danger.”
“It was not a threat to someone’s life, [and] it was not an immediate incitement to violence.”
Harris cited the case of Hayden Barnes, a student at Valdosta State University who was summarily expelled in 2007 after the school’s president determined that Barnes was personally threatening him with his opposition to several school parking garages. When Barnes sued, a jury found that Valdosta President Ronald Zaccari had acted so illegally that he was personally liable for $50,000 in damages to Barnes. The case is still locked in litigation, but recent rulings in appeals court have opened the door for Barnes to receive hundreds of thousands of additional damages from the university in damages and attorney fees.
While the alleged wrongs in each case are quite different, Harris said the violation of due process in each case appears to be almost identical. Combined with the possible damages stemming from First Amendment violations, Oklahoma could be exposing itself to hundreds of thousands in damages, while Boren could wind up personally exposed as well.
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