As incredibly stupid as these frat boys were, the university response, without due process, is questionable.

Students may be stupid, but that's a reason to be in school.

--imm

[hr][font color="blue"][center]If you think childhood is finished, maybe you didn't do it right the first time.
Start over.[/center][/font][hr]

I have heard violent threats chanted at football games. I just think these kids will have a case. Singing a song that mentions lynching is not the same thing as a direct threat. Their behavior, though disgusting, does not preclude their first amendment rights.

--imm

...even if one did, talking about lynching surely qualifies as "a 'true threat' of violence". So, no, their right to make threatening remarks like that are not to be defended.

Ever.
[hr][font color="blue"][center]Stop looking for heroes. BE one.[/center][/font][hr]

What about creating a hostile environment for African American students? Is that somehow protected?

since conservatives don't believe in "hostile workplace/environment" issues unless it involves "Christians"

He's a long-time, right-wing legal fixture; very big amongst the pro-gun types. His opinion about the OU situation is worth approximately jack shit, as far as I'm concerned.

Volokh is making a sweeping assumption that any listener would not hear this racist chant as a threat......and of course, the white male in him doesn't see that as a threat.

Expelling the students from the school? Not so sure that would stand.

Yes, Racist speech is protected by the 1st, BUT
There is no consitutional obligation to have SAE on a campus. Indeed, it is a priviledge, one OU had every right to revoke.

Second, Free Speech is one thing, supporting violence is another.

Now, let's take the two chants SAE was caugth doing, as it will explain the point..warning offensoive langauge.

The one done in Texas was to the tune of "if your'e happy and you know it" then there chorus was "Abe set em free, but he won;t pledge with me." Vile, Racist, a waste of Okalahoma tax dollars, yes, but compare to OK's chorus, which was "You can hang him from a tree." What is the doifference, because while it is not a crime to hate Abe Lincoln (though it does indiciate a LOW IQ) the OK ones supports KILLING. We take it for granted that no one is willing to hang Black kids from trees (yeah, now they just have cops shoot them) but we have to realize that we are always a few inches from rolling back to earlier violence. There are plenty of people, some whose minds are being trained in these fraternities, who would GLADLY bring lynching back, and that is why Brone has every right to expel people who threaten and promotoe KILLING.

Do remember, the KKK started off as a fraternity prank.

but that doesn't mean a public university can punish students for engaging in protected speech even if that speech is offensive and even if has violent overtones.

The expulsion of the fraternity from the University is valid because the speech is prima facie evidence that the fraternity engaged in behavior -- discriminatory admissions -- that is not protected.

Whether students can be expelled for creating a disruptive or hostile environment is a closer call. In this case I believe it would have merit (nothwithstanding Volkoh's suggestion to the contrary) since their continued presence on campus would be disruptive.

In any event, I have my doubts that these students would sue to be reinstated under the circumstances.

As for the KKK -- I believe it started as a fraternal organization, not as a university fraternity. If you have some information to the contrary, I'd be interested in seeing it.

Is that not grounds for dismissal?

Public schools are government agencies, and as such cannot pass rules that violate state or federal laws. A public school could, for instance, pass a rule saying that all speeches given in a particular public forum have to be vetted by the school administration first, under threat of expulsion. If a student gave an unapproved speech and was expelled, they would win any lawsuit they filed against the university. Once the school opens a particular venue for public speech, the First Amendment prohibits the government (in this case, the school administration) from abridging the content of the speeches. So long as those speeches aren't actually violating any laws, the schools only legal options are "no speech" or "all speech".

Private universities have a lot more leeway on the subject, but public universities and colleges have to abide by the same legal rules as any other government agency.

As a general rule: "If your local police can't stop you from saying it on a street corner, your public college can't stop you from saying it on campus."

apply to cheating on tests/papers? Would a public university not have the discretion to expel students for violating the cheating policy? Or is it something else altogether?

You don't have a legal right to cheat. You do have a legal right to say nearly anything you want without government reprisal. That's why we don't have hate speech laws in the United States. In RAV v. City of St. Paul, the Supreme Court said that hate speech laws are unconstitutional. Government cannot regulate the content of expression.

A public university is not a government entity. I am interested to see what the expelled students do. I am sure the university has a team of lawyers advising them.

"A public university is not a government entity."

Yes, it is. State universities are part of their state government, and receive taxpayer funding from the state. While they may have a bit more independence than most state agencies, they are just as much a "government entity" as the DMV is.

Source: I spent several years working as an adjunct computer science instructor in both California Community Colleges and a CSU. Our budget was handled differently, but we were state employees. I even have retirement funds sitting in CalSTRS, which is the state teacher retirement system run by the state government.

It's pretty much the same in the other 49 states. Private universities can do pretty much anything they want, but public universities are bound by the same laws that bind their state governments.

And as a Federal employee, I was forbidden from discussing partisan politics at work. Just because it's public, doesn't mean it's a free for all.

The students are free to express their Constitutionally protected speech as non OU students.

It'll be interesting to see how this shakes out.

As a federal employee, you were not forbidden from discussing politics at work. It's not uncommon for misinformed government managers to promote the idea that they are, but the actual law and federal rules says that you are not. You are only forbidden from PROMOTING a particular partisan political ideal. E.G., you can discuss the current status of an election, and you can even say "I'm voting for candidate X", but you cannot try to convince others to vote your way, or try to convince them that their position is wrong. The actual standard is that federal employees cannot be fired over "discussions of matters of public concern, so long as the speech isn't connected to their job and that the speech doesn't rise to the level of politicking".

As to the military, they operate under a special restricted set of Constitutional rights augmented by the UCMJ, as affirmed by the Supreme Court in Parker v. Levy. That ruling had no effect on anyone outside of the military.

Besides, in both of those examples, there is one glaring difference. Your examples are of government employees, and students are NOT government employees. A student in a public university is a member of the public who is receiving a service from a government agency. Claiming that colleges have the ability to limit the rights of the students who attend those colleges is the ethical equivalent of claiming that states have the right to drug test welfare cases. Receiving a service from the government does NOT grant the government the right to abridge your constitutional protections.

..but I maintain that the first amendment does not necessarily extend to a students right to say what they want at a public university. If the student violates a code of conduct, then yeah, I think they can be expelled. But I'm no lawyer. We'll see how this plays out.

If I was a black student there I would feel threatened.

And it's actionable in any court.

It has to be regarded as, under the circumstances, a true threat. And I doubt you could convince a court or jury it was anything more than racist hyperbole. I'm not in any way defending these assholes who should be expelled on the grounds that their continued presence on campus would be disruptive to the academic environment.

Not actionable if said to an entire race.

If they were standing across from a person or group and said that, it's actionable.

Said without them present, without naming specific people, without intent for them to hear it- not actionable as a threat.

appearing in the WaPo appears to give him more legitimacy, as well as his UCLA law professorship.

He sounds to have libertarian leanings, from the positions that he holds on different issues.

but that racist bunch had to sign something that basically said they would represent their frat in all things. So, no there 1st amendment rights don't come into play here, IF they signed away their rights to be in that frat.

Contracts have just as much legal meaning as free speech. Sorry Charlie.

Let's imagine it's 1971 and imagine that my roommate's fraternity, Alpha Episilon Pi (the most liberal fraternity on campus) organized a protest against the Vietnam War and the presence of ROTC on campus. Let's imagine the right wing administration of the university didn't agree and decided to expel the fraternity.

No first amendment rights? I don't think so.

Here, the fraternity was bound not to engage in discriminatory practices. The chant is prima facie evidence that they violated that requirement. (If they want to try to prove otherwise they could but given what we know about the fraternity, they haven't any chance of rebutting the prima facie evidence). As for the students, their continued presence on campus would be disruptive and create a hostile environment, so expulsion would be appropriate.

Guess not. When you sign on the dotted line, for anything, make sure to read the fine print. They are NOT allowed to just say or do whatever they want. They represent the frat they joined...so sorry, they do NOT have the right to say what they want to - if they QUIT the frat then yes...no longer under legal obligation to follow the RULES in the contract.

And as I stated and you must have missed in my post, some do some don't have contracts...in the title I said the guy might be right IN GENERAL.

Sorry Charlie.

Doesn't (or can't) the Miller Test (Miller vs. CA, 1973) apply in this instance?

"The Miller test (also called the Three Prong Obscenity Test) is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited."

http://en.wikipedia.org/wiki/Miller_test

Here is the Miller Test:
1.whether the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
2.whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion); and
3.whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

These punks aren't going to contest their expulsion, last thing they want is to prolong their time in the limelight

but his counter argument will be that "school policy" or "codes of conduct" cannot trump Constitutional rights. I would give serious thought to this point of view except for the fact that the Bill of Rights is pretty much null and void these days.

I don't think that is protected speech.



Edited to change lunch to lynch in the header (rider still giggling at her error... )

you meant "lynch" not "lunch".

You are correct, except his counter is that since no black people were present, there was no one to be threatened.

Again, I disagree that this is germane, but that is his logic.

The perils of posting on the run



Thanks for the laugh today (yes, sometimes I'm most amused by myself and my failings)



As someone pointed out down thread though, I'm sure the KKK also threatened lynching when no black folks were around. An extreme example but can they get away with that kind of speech without consequences? And the chanting is veering dangerously close to incitement imo.

A sticky wicket indeed. I presume the students will sue the school over the expulsion. I bet the president doesn't care one whit. He made a dramatic point and even if these boys (yes boys) get their expulsion overturned, their lives won't be smooth there ever again.

as they are rich and white, they have an excellent chance of getting this overturned. But, as you point out, they wouldn't like the process.

I had heard that the frat was expelled, in which case this defense seems like a red herring. If students were expelled there might be more to talk about here.

Even there there is real and valid questions about creating a threatening atmosphere on campus.

Bryant

I do believe that the measure of one's commitment to freedom of speech isn't the allowance of speech you like but the allowance of speech you find hateful; that said, a rally like that threatening Black students, however indirectly, creates an atmosphere of threat.

Bryant

it sounds systematic
if there has never been an AA in SAE
then it's more than a song - it's policy

Oklahoma university expels 2 students over racist video


"The University of Oklahoma has expelled two students linked to a video showing members of a fraternity singing a song filled with racial epithets, the school's president said on Tuesday.

The two students were "identified as playing a leadership role in the singing of a racist chant" connected to a Sigma Alpha Epsilon fraternity event, President David Boren said in a statement posted on Twitter.

"There is zero tolerance for this kind of threatening racist behaviour at the University of Oklahoma," he wrote.

snip


The university will continue to investigate all of the students engaged in the singing of the chant, he said. Once their identities are confirmed, they will be subject to disciplinary action as well, he said.

http://www.cbc.ca/news/world/oklahoma-university-expels-2-students-over-racist-video-1.2988736

The "excuse" here seems to be that "Well, no black person was around to feel threatened so it's cool".

I am quite sure no black people were around when Klansmen discussed lynching blacks.

The other excuse is that it is not a criminal conspiracy, as everyone knew they weren't serious about killing anyone. There are plenty of examples of people winding up dead and their murders claiming they were "just joking" around.

Rocket launchers beat lynching any day. I think he is "threatening" the US Military. Do they deserve our protection?

under the applicable Supreme Court precedents, starting with Brandenburg v. Ohio, 395 U.S. 444 (1969).

if judicial precedent and the Constitution actually meant anything these days, but since they don't...

And I never said it did.
So take your "guess what" and put it back on the shelf where you found it along with your other unnecessary snark.

And I'm glad.

but that would lead them to be, justly, expelled from the frat, but not the university. What Perry Mason up there is arguing is that they cannot be expelled from a publicly-funded university for making racists comments, because while such things are vile, they are "protected speech".

Expulsion from the university is another legal matter indeed. ETA: Ok, I see they WERE expelled from the university. Hmm.

and while I would once go out on a limb on this one over Constitutional issues, I will not do so any more since such things are irrelevant.

and good luck at them getting in at another university.

Wonder why their names have not become public? Seems like someone would publish the names.

They'll slink away and resurface somewhere else very quietly, and hopefully a little smarter.

consulted with University legal before acting.

Boren is a smart man, I was impressed with him back when he was Senator, though I didn't always agree with him. He really stepped up to the occasion here.

this whole thing sickens me. But I'm happy the way that Boren handled it thus far.

I bet he could find out what the frat rules (if they have any) and/or knows the general rules for attending the college he is in charge of.

Whatever he did, I'm sure he doesn't want to embroil the university in a lawsuit.

Never heard of him before, but he has my respect for such swift action.

Once he steps down, psycho republicans will attempt to dismantle OU like Walker wants to do to UW.
I had a great education at OU and it landed me a great job at WVU (which has had its share of fraternity problems this academic year).

Boren brought his good buddy Al Gore to campus to show "An Inconvenient Truth." There were probably 15,000 people there.

His stance on many issues seem libertarian.

.. a boatload of wishful thinking.

The expulsions will stand. You wait and see.

My understanding is that if you agree to a code of conduct that includes limits, you MAY be held accountable.

Having said that, I think the expulsions might be going too far, on a Constitution basis.

No one is saying that these frat boys (or anyone else) cannot sing that despicable song. Just saying that if you do, we (the university) will no longer be associated with you so you will have to spew your vile elsewhere. I have no problem with that whatsoever.

I've thrown someone out of my house because he has an objectionable mouth on him. I dare him to sue.

I will post another article on this.