Why Punishing Students for Racism at the University of Oklahoma Is Wrong, and Unconstitutional

University of Oklahoma President David Boren has shut down the Sigma Alpha Epsilon house, ordered students living there to leave, and expelled two students for leading a racist chant. These actions are a violation of the University of Oklahoma’s rules and, as FIRE points out, punishing these students is “almost certainly unconstitutional.”

Some might wonder: why am I defending the rights of racists? We should all be alarmed at use of arbitrary power by college administrators. Today, it may be dumb-ass racists being tossed out. But if you allow administrators to violate campus rules and the First Amendment, then there’s nothing to stop them from punishing other students for their political speech. What happens when a critic of Islamic terrorists is accused of racism, or a critic of Israeli attacks is accused of anti-Semitism? What happens when a critic of religion is accused of bigotry, or a devout believer is deemed a homophobe? Who do we trust to decide which beliefs are acceptable?

Counterspeech directed at these racist idiots has made them pariahs denounced across the country. (Ironically, because of FERPA laws, the university is prohibited from identifying any of the students because it is punishing them; if it did not seek to punish the students involved, the university could denounce the racist students by name for their words.)

The expulsion of two students for leading the racist chant is a direct violation of the First Amendment and the UO code of conduct. UO’s Code is a badly written speech code that cannot pass constitutional muster. But even under that code, the expulsions are illegitimate.

The University of Oklahoma’s rules do allow a very broad scope for arbitrary punishment without a hearing: “Direct Administrative Action, which he/she deems necessary for the welfare or safety of the University Community; to maintain order on the campus and preserve the orderly functioning of the University; to stop or prevent interference in any manner with the public or private rights of others on University premises; to stop or prevent actions that threaten the health or safety of any person; or stop or prevent actions that destroy or damage property of the University, its students, faculty, staff, or guests.” However, even these rules are not met by this case; there is no evidence that immediate expulsion was necessary to protect anyone’s rights. Boren wrote to the racist students: “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.”

However, the standard of a “hostile educational environment” is a strong legal rule that simply is not met by chanting a racist song on a bus ride. Harassment law requires actions that are pervasive and substantial, and actually impact the learning environment of others. There are plenty of people who were rightly offended by this racist chant. But being offended by racism is not proof of harassment.

Equally alarming is the command by the university for all people living in the SAE house to leave. Banishment from university-owned housing is listed as a possible punishment under the student code, but that requires evidence. Certainly, the university has no idea whether all of the people living in the house participated in the racist chant, nor has it held a hearing allowing these students to defend themselves. Shutting down the house is a punishment that requires a hearing, and in no case except a dire emergency can a university simply force someone from their home with a mere 24 hour notice.

It is always tempting, when faced with bigotry and stupidity, to give into demands to “do something,” and to believe that censorship is the only kind of meaningful action. But ultimately, a university exists to educate, not to punish.

I believe in free speech and due process, not because I endorse racist idiots, but because we must not allow administrators to arbitrarily punish anyone who engages in unpopular speech. It is always tempting to say that bigoted morons should be punished. But when we give administrators the power to punish anyone they feel is offensive, rather than relying upon the power of our condemnation to oppose racism, we do a great deal of harm in undermining freedom of speech and we do very little to stop racism.

One thought on “Why Punishing Students for Racism at the University of Oklahoma Is Wrong, and Unconstitutional

  1. John, I agree with your argument, as reprehensible as the students’ chant was. One of my friends is Jewish. who as an ACLU attorney ended up representing the Nazi Party in Skokie. He recounted a discussion in a synagogue where he was urged to do this work by fellow Jews, including Holocaust survivors because protecting free speech allowed the public to hear how reprehensible the Nazi ideology was. To suppress this only made them heroes. Similarly, expelling these students will make them heroes in some racist circles. If the safety issues could be handled, allowing the students to remain would give them the opportunity to be answerable to their fellow students for their ideas. I wonder if there might be a real education process if students had to explain to a black fellow student why there would never be a black allowed in the fraternity. Unfortunately, it seems that universities have created the expectation that offensive speech will simply be suppressed rather than called to account, which is what is supposed to happen in a marketplace of ideas. Sadly, it seems that we settle for the expression of outrage instead of real argument.

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