Althouse: "No, it’s not constitutional for the University of Oklahoma to expel students for racist speech."

March 10, 2015

"No, it’s not constitutional for the University of Oklahoma to expel students for racist speech."

Eugene Volokh argues strenuously.

53 comments:

Curious George said...: Pffft. This isn't America. It's a university.; 3/10/15, 7:36 PM
Tom said...: That's the point. If the university is made to take them back, then it's the Constitution that is protecting idiotic, toxic, and racist speech and is, therefore, bad.; 3/10/15, 7:39 PM
Michael K said...: Boot those SAEs out ! Who they think they are ?

Blacks ?; 3/10/15, 7:41 PM
Sebastian said...: Three problems:

1. Constitution? What Constitution?

2. Who's gonna do anything about it?

3. His (potential) clients touched the real third rail in American politics.

Other than that, he's right.; 3/10/15, 7:42 PM
Mark Caplan said...: The part of the song about not wanting to recruit African Americans into the fraternity is protected speech, but the subsequent terroristic threat isn't protected.; 3/10/15, 7:49 PM
traditionalguy said...: What about the commerce clause? If it's good enough for the public accommodations under the 1964 Act, why can't the University of Oklahoma enforce discrimination violators among its interstate student body.

The expelled chant leader was from Dallas where he went to Dallas Jesuit Academy Prep and probably grew up in exclusive Highland Park.; 3/10/15, 7:51 PM
Diogenes of Sinope said...: Eugene Volokh is 100 percent correct this is an unconstitutional violation of freedom of speech. We have to defend these asshole's right to freedom of speech. To not defend their rights is to accept everyone else's rights being diminished. IT isn't freedom of speech for agreeable acceptable speech.; 3/10/15, 7:52 PM
Guimo said...: Keep fucking that chicken, David Boren.; 3/10/15, 7:55 PM
Bob said...: The inevitable lawsuit will be filed in 3...2...1...; 3/10/15, 8:06 PM
Brando said...: I'd have assumed the University would have consulted their lawyers before announcing the expulsions. I wonder if they actually did, and if so why the lawyers would think this could fly.; 3/10/15, 8:07 PM
rhhardin said...: It's intimidation, not punishment.

Not of the perps, but of everybody.

Or you can have a constituion.; 3/10/15, 8:08 PM
Crimso said...: Once this becomes accepted, what is next? Don't think universities won't see this as a trial balloon to help plumb the depths of expelling students for saying any of a number of unpopular (and dumb) things.

Now, if the students in question were shouting epithets at other students, that could well be a different kettle of fish. But that doesn't appear to be the case here.

Thought experiment: what if the students involved did not belong to any particular organization? Should they still be expelled? Why or why not? If so, then students at OU might want to confiscate any phones or other recording devices from their friends when they come over to their apartments or dorm rooms to visit. Otherwise, somebody might get a recording of them questioning AGW...; 3/10/15, 8:13 PM
Chuck said...: Bob; I emailed this link to Professor Althouse with exactly that prediction. That Oklahoma could well expect to be sued.

Yes, they have First Amendment rights as Volokh rightly points out. But they seem to have been expelled in a kind of super-executive action by President Boren, on the basis of Title IX (since he cites "a hostile learning environment"). No notice of a complaint, no hearing, no notification of any findings of fact. No individual student complaints (though many might complain after seeing the video).

And what I predicted to Professor Althouse in my email to her was that President Boren is probably saying to himself and the University board; "So what; we'll pay whatever is needed..."

This is the new world of Title IX. First, protect the institution per the dictates of political correctness. Only as an afterthought would a leader be concerned about any exposure to a lawsuit for denial of anyone's procedural or substantive due process rights. Better -- much better -- to act swiftly in the pursuit of political correctness, and protect perhaps hundreds of millions of federal education dollars, than to be worried about a student-plaintiff's lawsuit.; 3/10/15, 8:19 PM
Jaq said...: What's the opposite of diversity? University. - Kate at SmallDeadAnimals.; 3/10/15, 8:24 PM
Levi Starks said...: Members of Lambda Lambda Lambda are watching this case closely..; 3/10/15, 8:29 PM
Mike said...: Traditional Guy, the economics of school in Dallas are this: if you live in the North Dallas area and have two kids you send them to private schools like Jesuit. If you have three kids, you buy a house in the Park Cities and send your kids to the public schools.; 3/10/15, 8:29 PM
Skeptical Voter said...: There's a lot of vile and toxic speech at any university. Just go to one of their gender/ethnic/feminist studies classes, and you'll get a boatload.

And yes, that vile and toxic speech is protected; as is a UCLA student council having a serious discussion early this month about whether a candidate for a position was "too Jewish". You can bet that they weren't going to let any Jewish bagel hang on their student judicial tree. Might upset the Palestinians.; 3/10/15, 8:33 PM
Richard Dolan said...: Discrimination on grounds of race is official policy at almost every American university. Universities, more than any other institution, are strongly in favor of racial discrimination, so long as they deem it benign or in the sevice of some greater good. In carrying out that policy, university officials have the same freedom to speak in favor of their brand of discrimination, which they exercise with gusto. Indeed, woe unto him (it's always a him) who speaks against the racially discriminatory policies favored by the academy's nomenklatura.

Funny how that works, speech being free for some and not others.; 3/10/15, 9:04 PM
The Godfather said...: "First they came for the assholes. And I didn't speak up because I was not an asshole."; 3/10/15, 9:05 PM
steve uhr said...: It is unconstitutional but I doubt the students are going to raise the issue and keep their horrendous conduct in the public eye. I think they will quietly slither away.; 3/10/15, 9:07 PM
traditionalguy said...: All agree that Free speech can say bad words. Was all that you guys heard a bad word. The black men heard something else.

And as President of OU Boren properly focused on hearing SAE's leadership chants to mean threats to OU's students of the wrong skin color. It proudly said over and over that all can rely on SAE's mob of elite white men to lynch them before it will ever accept them as equals.; 3/10/15, 9:17 PM
sojerofgod said...: The Godfather said...
"First they came for the assholes. And I didn't speak up because I was not an asshole."

Are you sure?

I mean, don't you need to consult an impartial source?

You could be one and just not notice it... "The fish doesn't know that he's wet" or that sort of thing.

Can't be too careful about those things you know.; 3/10/15, 9:17 PM
Mike said...: This comment has been removed by the author.; 3/10/15, 9:39 PM
Hagar said...: Interesting clip on one of the Fox shows tonight.
Apparently none of the guys chanting on the bus were residents of the chapterhouse.

And I am pretty sure the young black man interviewed by the local TV station said he was a member of SAE. I believe he said he was sorrowful about the young asses on the bus, but that he really had not seen any such behavior before and had been generally happy as a member.; 3/10/15, 9:39 PM
Mike said...: Steve Uhr,

Should the kid try to transfer any credit, and the transcript says anything other than he was a student in good standing, there will be a lawsuit. But, yeah... He's probably going away on his own.

(Every college application requires you to disclose previous college attendance. Lying on that form is grounds for dismissal.); 3/10/15, 9:42 PM
William said...: For the others. The punishment is disproportionate and is meant to send a message......These are, apparently,the well born children of affluent families. White privilege is such that these students can survive a dislocation such as this and still survive. If, however, they choose to become nationally famous as advocates for the right to say the n-word, their lives will become hideously complicated and sodden with misery........Émigrés from the Soviet Union in the seventies and eighties were amazed to find that there was poverty and discrimination in the United States. They felt that everything they read in Pravda was a lie.....In this case our media has at long last discovered a clear cut case of white racism in a college fraternity. They are sharpening their pencils and would love to inflict investigative journalism on these students and their families. Cut your losses and let it go.; 3/10/15, 9:49 PM
Alex said...: Didn't the 1964 Civil Rights act declare that we have no freedom of association rights? Unless you're a liberal.; 3/10/15, 10:00 PM
Dustin said...: You don't need a freedom of speech to say things that don't offend others.

These guys deserve to be publicly criticized harshly, but for the government to act to censor them is too far a step in my view. What happens when ideas of merit run against the popular view, or is deemed offensive? That's happened many times in history.

We need a sacrosanct freedom of speech. The government shouldn't need to step in to shut people down, because in a healthy society, the other view will be spoken too, and will prevail if it's the right view.; 3/10/15, 10:00 PM
richard mcenroe said...: Dallas?! A good Democratic city. How can that be possible?; 3/10/15, 10:19 PM
Revenant said...: And as President of OU Boren properly focused on hearing SAE's leadership chants to mean threats to OU's students of the wrong skin color.

Meanwhile, back in reality, no court will believe that the chant was a "threat".

The two men have a peach of lawsuit if the university doesn't take its head out of its ass double-quick.; 3/10/15, 10:48 PM
Gabriel said...: The Constitution is not a magic wand that dispenses justice and fairness. It protected slavery once, and it protects racist speech and abortion now.

Another egregious example of Constitutional unfairness and injustice is how in 1868 it legalized gay marriage, but votes for women had to wait until 1920 and another amendment.; 3/10/15, 10:58 PM
Smilin' Jack said...: ""No, it’s not constitutional for the University of Oklahoma to expel students for racist speech.""

Sure it is. It's in the Commerce Clause, or one of those penumbras, or something.; 3/10/15, 11:37 PM
DKWalser said...: Eugene Volokh argues strenuously.

More importantly, he argued persuasively.; 3/10/15, 11:54 PM
Lewis Wetzel said...: I'm not sure how these things sit with that social class. How objectionable is this on a scale of one to ten, with one being "diddling the servants" and ten being "spending capital"?; 3/11/15, 12:01 AM
Bruce Hayden said...: What about the commerce clause? If it's good enough for the public accommodations under the 1964 Act, why can't the University of Oklahoma enforce discrimination violators among its interstate student body.

Here is the problem there. The Civil Rights Acts were made applicable to private companies and the like through the Interstate Commerce Clause. But, this isn't a private company, but rather, a separate sovereign, and the federal Govt. is limited to what it can do there.

What is applicable to the University are the 1st and 14th Amdts. The University is a subdivision of the State of Oklahoma, and, thus, treated as a separate sovereign there. The 1st Amdt. is made applicable to the State/University through incorporation by the 14th Amdt. There are places where state universities can get away with some things when acting as, say, a landlord. But, these are limited, and likely not applicable here. Here, the university was clearly discriminating purely on the basis of the content of speech that it didn't like. If you want a school to be able to effectively have speech codes, be able to throw fraternities off campus on the grounds of it having engaged in disfavored speech, etc., then go to a private school.; 3/11/15, 12:25 AM
Bruce Hayden said...: More importantly, he argued persuasively.

I have known EV for most of 20 years now, and he is an expert here. And, he has been talking about this sort of thing for a long, long time.; 3/11/15, 12:27 AM
Fen said...: "The expelled chant leader was from Dallas where he went to Dallas Jesuit Academy Prep and probably grew up in exclusive Highland Park."

What Mike said upthread.

I grew up in HP. You don't move there and send your kids to Jesuit Academy. Highland Park is one of the top rated schools in the nation, and most the others are in the New England.; 3/11/15, 1:03 AM
Fen said...: It would be like having a free ride at Harvard and choosing the local community college instead.; 3/11/15, 1:07 AM
tds said...: on the upside it's still OK to be a communist and study at this University.; 3/11/15, 2:17 AM
Todd Roberson said...: Every social phenomenon has its inevitable backlash.

As a member of the faculty at a large state university, I can tell you that we (colleagues) and our students are bludgeoned every day with political correctness (censorship) on a daily basis. It's become almost oppressive.

I suggest the idiotic behavior of the SAEs at OU is part of that backlash.

I expect to see increasing occurrence of this sort of behavior.

Ironic, isn't it.; 3/11/15, 2:48 AM
n.n said...: Gabriel:

The Constitution never protected slavery, but rather tolerated it existence in order "to form a more perfect Union" (while avoiding a civil war, fighting a revolutionary war, and confronting other sovereign and alien subversive and hostile forces), while seeking to reduce democratic leverage of domestic interests thereof.

The Constitution does not protect elective abortion or provide for an extra-legal class of premeditated murder. The Constitution is addressed and recognizes the rights of two classes of people: We the People and Posterity. It is only through the gross ignorance of the Constitution and constructed "penumbra" (i.e. rejection of scientific fact and a self-evident process) that an exemption was found under the First Amendment (i.e. sincerely held faith) and Fourteenth Amendment (i.e. life -- not welfare -- and due process).

The Constitution does not protect prejudiced speech, including libelous speech, in equal measure. There are limits to the First Amendment. A notable, but selective, exemption has been constructed for purposes of civil rights speech or its pretense. As well as extortion and blackmail directed by these enterprises, both public and private.

The Constitution does not make pronouncements on marriage other than to favor productive unions as noted in the Preamble. The Constitution does not otherwise remark on trans unions, including homosexual unions, or any other species of union.

The Constitution never forbid, prevented, or tolerated forbidding or prevention of women's right to vote. As with the original compromise (i.e. slavery), it did not establish a uniform rule of law in this respect. It is not until the Fourteenth Amendment that "male" replaced "person", but previously it was Person. The Nineteenth Amendment was a uniform re-establishment of Person, non-male's suffrage right.

The Constitution also does not grant a right for unapportioned taxation, other than a direct tax on income; but, we have so-called "health care reform" despite the black letter law.

The Supreme Court Justices will interpret the Constitution to the political establishment and special interest's pleasure and opportunity, and they routinely did and still do, to the misfortune of the Republic, We the People and Posterity.; 3/11/15, 8:02 AM
RonF said...: What does that matter? By the time that these kids run through the appeals it will have cost them time and money, and good luck to them trying to get into any other university - especially if they try to transfer any credits from OU.

The idea here is to punish these kids. The fact that it's against the law to punish them in this fashion is immaterial. He's got the power to do this, so he does. It's called "lawfare", I believe. Might makes right and all that.; 3/11/15, 10:19 AM
Birches said...: I thought it was pretty obvious that OU was pulling an NFL here a la Ray Rice and Adrian Peterson. They expel the men, knowing they don't have a legal leg to stand on, but it plays well for the media cycle that they're "tough on racists." The kids either slither away or take it to court. They win, but by the time they win, OU is out of the limelight. Case closed.; 3/11/15, 10:30 AM
Ambrose said...: Not buying it. A university is not the public square. It has the right to maintain minimum behavioral standards among those who voluntarily choose to enroll and enforce those standards by disciplining students who violate them. Expulsion is merely a form of discipline. (And if the case law goes against me; it's been wrongly decided.); 3/11/15, 11:19 AM
Gabriel said...: @Ambrose: It has the right to maintain minimum behavioral standards among those who voluntarily choose to enroll and enforce those standards by disciplining students who violate them.

So they can expel students who join a conservative student group. Or students who join the NRA. It's just "minimum behavioral standards"--until you run into freedom of speech, religion, and association.; 3/11/15, 2:51 PM
Gabriel said...: @n. n.:The Supreme Court Justices will interpret the Constitution to the political establishment and special interest's pleasure and opportunity, and they routinely did and still do, to the misfortune of the Republic, We the People and Posterity.

I'm not sure you're getting my point. Of course I agree with what you say here, but it's not just the Supreme Court that is doing it. It is all of us who are doing it.

The reason I said the "Constitution" protects the things I listed is because we collectively have decided that the Constitution IS a magic wand that dispenses justice and fairness--and so we decide that anything unjust or unfair is also unConstitutional.

This is the only way you can get gay marriage, but not votes for women, out of the Fourteenth Amendment. Women already have the right to vote, so there is no point in twisting the 14th Amendment to say it's allowed. If your reading of it were correct, then today's courts would have ruled that only men have the right to marry other men under the 14th Amendment.

But until the 19th Amendment states did have the right under the Constitution to exclude women from voting. Some states chose not to. And until the 13th Amendment the states did have the right to slavery, so to that extent the Constitution "protected" those things.; 3/11/15, 2:57 PM
Ambrose said...: @Gabriel - should a university be forbidden from penalizing a student who cuts in line at the cafeteria lest the next day the Young Republicans could be denied their dinner?; 3/11/15, 3:07 PM
Opinh Bombay said...: When you sign on with a University and pay tuition you've entered into a contractual relationship.

Here is a linky linky to OU's policy.

http://cas.ou.edu/Websites/oucas/Images/pdf/OU_Student_Code.pdf

There is a racial section in it. I think the U is well within their contractual rights to expel these guys.; 3/11/15, 3:30 PM
Sammy Finkelman said...: >> It proudly said over and over that all can rely on SAE's mob of elite white men to lynch them before it will ever accept them as equals.

But what about this song then repeatedly sung on a bus by children coming back from day camp in 1964?

"We want Barry with a rope around his neck,

...a bullet in his chest,

and a knife in his back.

We want Barry with a rope around his neck,

hanging from the Whitestone Bridge

- undressed!; 3/11/15, 5:13 PM
Diogenes of Sinope said...: Our Constitutional rights cannot be taken by a contract with the state.; 3/11/15, 5:19 PM
Opinh Bombay said...: Re: "Our Constitutional rights cannot be taken by a contract with the state."

First, I hate the passive voice. Who is taking them away?

You agree to give up some speech when you enter the contract. For example, an Army officer cannot stand before the cameras in uniform and declaim her commander in chief.

A Chick-Fil-A worker can't stand in front of the camera in the company uniform and tell lies about the company and expect to stay employed.

The OU students agreed to behave in a fashion that was conducive to a good learning environment when they became students with the understanding that the U could discipline them for poor behavior.; 3/11/15, 6:43 PM
Mike said...: "The judicial outcome and the video speak for themselves," Oklahoma President David L. Boren said. "The University is an educational institution, which always sets high standards that we hope will be upheld by our students. We hope that our students will all learn from those standards, but at the same time, we believe in second chances so that our students can learn and grow from life's experiences."

OU's president after a football player punched a female student. The football player started the altercation by making a gay slur. That guy is still on the team and still a "student."

Hate speech and severe violence get you a second chance at OU if your a football player.

I think OU is going to have some difficulty defending the expulsion.; 3/11/15, 7:05 PM
Mike said...: Gahh.....

you're; 3/11/15, 7:07 PM