Was OU Expulsion of SAE Frat members Constitutional?

Recently there was an incident at the University of Oklahoma where members of the Sigma Alpha Epsilon fraternity were caught on video singing a racist chant while on a bus to a formal fraternity dance. The chant, among other offensive and racist phrases, included the assertion that “There will never be a ****** in SAE.” The phrase used a racially derogatory term for African-Americans and expressed the sentiment that they would exclude African-Americans from membership in their fraternity. David Boren, president of the University of Oklahoma, announced that approximately 25 members of the school’s SAE chapter will face punishment ranging from expulsion to community service and cultural sensitivity training.

Two students, considered the ring leaders of the chant, have already been expelled. SAE was founded at the University of Alabama in 1856, and many of its founders fought for the Confederacy or were part of plantation-owning families. The national fraternity, in defending their institution, pointed to the fact that approximately 20% of its 15,000 national members self-identify as a minority or non-Caucasian. The chapter acknowledged that the OU chapter members likely learned the song at a national SAE leadership conference four years prior to the incident.

Was the chant by the students protected speech under the First Amendment? Read the following with pro and con opinions in articles on the subject:

Yes, it did violate their free speech rights:
No, it is not constitutional for OU to expel students for racist speech

First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993).

– Eugene Vokokh, UCLA Professor of Law

OU Broke the law to avoid bad press

Civil Libertarians Say Expelling Oklahoma Frat Students May Be Illegal

Strong Free Speech Defense for OU Students Expelled for Racist Chant

No, it did not violate their free speech rights:

only was SAE student expulsion legal, it was right

According to these rules, the students could be sanctioned with expulsion. In SAE’s video, abusive language was being directed toward a particular group of students (i.e. African-Americans who wanted to pledge their fraternity). That chant was more than just a casually recited song meant to invoke a sense of brotherhood amongst those in the chapter. And the meaning and significance behind the words in the chant did more than just offend a few students.

As Boren mentioned, the attack on black people that SAE alluded to could make students feel unsafe in a learning environment. After numerous unarmed black teenagers’ experienced deadly force at the hands of white law enforcement, students may feel intimidated by verbal attacks from white students.

– Willie Burnley, Jr. and Alex Samuels, USA TODAY Collegiate Correspondents

OU President Decision to Expel supported by Student Government at OU

Mr. Boren, in an interview Monday as he considered what action to take, said he was examining the relevance of Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by agencies that receive federal funds and, federal officials have said, forbids creation of a “racially hostile environment” in schools.

In a break with most legal experts, Daria Roithmayr, a law professor at the University of Southern California who has written about the interplay of law and racism, said that a plausible argument could be made that the students’ action caused a “material disruption” in the university’s educational mission and was not protected by the First Amendment.

OU Expulsion of SAE Students Leads to Free Speech Debate

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Date: Monday, 30. March 2015 16:49
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