Campus Free Speech

The OU Debacle and the Case for Private Institutions

Government isn't allowed to punish speech; should the same go for universities?

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Sigma Alpha Epsilon Fraternity

Yesterday the president of the University of Oklahoma (OU) expelled two students who had been caught on camera leading a bus full of their fraternity brothers in disgustingly racist song. Despite agreement from all corners that their behavior was worthy of condemnation, legal experts and First Amendment advocates quickly pointed out that, well, um, kicking students out of a public college for something they said almost definitely violates the Constitution.

"The university president wrote that the students are being expelled for 'your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others,'" wrote the law professor Eugene Volokh on his blog at The Washington Post. "But there is no First Amendment exception for racist speech, or exclusionary speech, or…for speech by university students that has created a hostile educational environment for others."

As my colleague Robby Soave put it, "You can't expel students at a public university for their words. It's that simple."

This specifically applies here because the University of Oklahoma is a public, state-run entity. Like a teacher at a public elementary school, or a worker at the Oklahoma City Social Security office, OU's president, David Boren, is a government employee. And the government is explicitly prohibited from "abridging the freedom of speech."

In fact, the very purpose of the expulsions was to abridge speech—to make it clear that the language the students used is unwelcome on the OU campus. But if Volokh and the others are right that this is unconstitutional, it's hard to imagine any punishment university administrators could have meted out—demanding a public apology, say, or requiring members of the fraternity to perform community service—that wouldn't have had the practical effect of chilling students' speech, thus leaving the school vulnerable to legal challenge. In other words, public university administrators are toothless—the law gives them few if any avenues for taking disciplinary action against a student for inappropriate speech, no matter how heinous his or her words might be.

Greg Lukianoff, president of the Foundation for Individual Rights in Education and a noted pro-speech activist, offered one alternative: "They have the bully pulpit. Boren absolutely has the right to condemn it," he says. But he maintains that to expel them is "almost certainly unconstitutional."

Is the bully pulpit enough? OU's president didn't think so, and I suspect he's not alone. Shouldn't schools have the right to decline admission to applicants with a record of making inappropriate comments, or to remove individuals who flout the school's rules about acceptable speech? It's reasonable to consult our moral intuitions, and some people's intuitions are likely telling them that there's something wrong with the status quo unfolding before us, in which universities are required by law to take a hands-off approach to students who are caught using racial slurs and making jokes about lynchings.

It's a gut-check that should cause us all to reconsider whether it's a good thing so many of our universities are run by the state.

Private institutions are rightly removed from the constraints that need to be there to keep government, an entity with the tax man, the judge, and the jailer at its disposal, in check. This means private institutions are far freer to decide the best way to address situations like the one in Oklahoma, far freer to take student and faculty perspectives into account when making rules, far freer to experiment with contractual or other arrangements aimed at producing the best possible learning environments, and far freer to change those arrangements when they fail. More private institutions also give students more opportunities to seek out a college committed to the approach to speech that they believe is right—instead of being stuck with one that public universities, hamstrung by their relationship to the state, are necessarily bound by.

NEXT: Is It Really Plausible That Clinton Didn't Send a Single Classified Email During Her Time at State?

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  1. Like a teacher at a public elemantary school, or a worker at the Oklahoma City Social Security office, OU’s president, David Boren, is a government employee.

    What are the requisite qualifications to be a university president? Does he have legal representation when deciding how to appease a mob? Wouldn’t Che-style firing squads have been more satisfying here?

    1. I think most higher ed administrators are suspect to begin with: they are all people who started off in academia in order to teach and do research but then decided they’d prefer to run other people’s lives.

      Heroic Mulatto is an exception to this rule of thumb.

      1. So they’re not geniuses with no need of counsel on the constitutionality of their decisions?

        More importantly, do expelled students get their tuition returned?

        1. I haven’t known a whole lot of college presidents but, no, “genius” is not the word that usually comes to mind. Since their main job is to represent the institution to outsiders and raise money, they tend to have more in common with politicians than with academics. Most of the day-to-day admin is done by vice-chancellors and deans.

          Tuition: no idea. If what they did can be construed as a violation of a code-of-conduct, then they probably wouldn’t get their money back. And I suspect that is how OU will defend the expulsion. Having said that, I just skimmed OU’s code of conduct and there is a proviso that any charge of violating the code leads to a mandatory meeting where the student is made aware of the charges against them. So the OU prez may well have violated his own rules.

          1. A legal “genius” he is not. In expelling the two students, the university president erroneously claimed that the racist chant created a “hostile environment.” But even if it had occurred on campus, this chant was not aimed at particular black students, and was not not sufficient, by itself, to create a hostile learning environment under appeals court precedent. See, e.g., Witt v. Roadway Express, 136 F.3d 1424, 1432-33 (10th Cir.1998) (overheard racial epithets were not sufficient to show a hostile work environment); Bolden v. PRC, 43 F.3d 545, 551 (10th Cir. 1995) (two racial slurs not enough to show hostile environment); see also Gleason v. Mesirow Financial, 118 F.3d 1134 (7th Cir. 1997) (discounting significance of “second hand harassment”); see also Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding a co-worker once calling the plaintiff a “n—” insufficiently severe to establish a hostile work environment), aff’d, 58 F.3d 640 (11th Cir. 1995). That is putting aside the additional fact that the racist chant appears to have occurred off campus on a charter bus going somewhere else. Appeals court rulings like Lam v. University of Missouri, 122 F.3d 654 (8th Cir. 1997) have typically rejected harassment claims against schools based on conduct ? even serious misconduct like “off-campus assaults” — outside of school. And speech is less subject to regulation away from school, see Klein v. Smith (1986).

            1. claimed that the racist chant created a “hostile environment.” But even if it had occurred on campus, this chant was not aimed at particular black students, and was not not sufficient, by itself, to create a hostile learning environment under appeals court precedent.

              As I stated below, the hostile environment I believe was more a reference to the safety of these students from retribution of the offended on campus than it was about their actions creating a hostile environment in and of itself.

    2. I don’t know what qualifications most universities use to choose their presidents, but Boren was chosen primarily because he was a popular governor and senator.

      Also, his aunt wrote Heartbreak Hotel, and his cousin was Hoyt Axton.

      1. its a reward given to loyal soldiers in the political arena. It has little to do with any real academic qualifications

  2. Forget it, Stephanie – it’s Botown…

    1. Great, the Offended White Guy brigade is here. I bet most of you don’t even have a COLLEGE DEGREE!!1111!!

      1. OWGB represent!

  3. Shouldn’t schools have the right to decline admission to applicants with a record of making inappropriate comments, or to remove individuals who flout the school’s rules about acceptable speech? It’s reasonable to consult our moral intuitions, and some people’s intuitions are likely telling them that there’s something wrong with he status quo unfolding before us, in which universities are required by law to take a hands-off approach to students who are caught using racial slurs and making jokes about lynchings.

    Is this satire?

    1. In the context where her solution is to get the government out of the university business what’s wrong with that statement?

      1. While I’m all for getting the govt as removed from the business of education as anyone, I don’t think “So that we can have an orchestrated effort to persecute crimethink” is the real selling point for me.

        1. But it wouldn’t have to be an orchestrated effort to persecute crimethink. You could have conservative and liberal institutions with different criteria for acceptance.

          This is really just about free association.

          1. If you were to have any success going this route, you would also have to deal with the accreditation agencies. There are already some agencies threatening to strip accreditation from Christian institutes that don’t allow homosexual acts by their students.

            Of course, I realize that that is pulling at a thread that unravels much of higher ed.

          2. This is really just about free association.

            And I have no qualms about free association. I would find no legal issue with such an expulsion in the event of a completely private institution without any federal funding comingled in.

            But that doesn’t mean I’d find the decision of that private institution to expel any less absurd. I’m just one of those people that doesn’t find any references to America’s original sin, even vulgar and celebratory ones, sufficient cause to wholly remove someone from society.

        2. Punishing those stupid racist fucks, when allowed by the standards of conduct at a private institution and whatever contract they sign when joining, is not “an orchestrated effort to persecute crimethink.”

          1. those stupid racist fucks

            So on the basis of 11 seconds of video, in a groupthink and conformity-inducing environment, we can accurately judge the content of these young men’s characters?

            I love the irony of how everyone in the world seems to know how “prejudicial” these guys are on the basis of 11 fucking seconds.

            1. I think at a private institution they should get more due process than they received, and that other less extreme punishments should be considered first but yes I’m judging away. Also, only the two leaders were expelled which throws out the whole conformity-inducing environment thing.

              1. Do you think a radical Islamist who defends ISIS/Al Queda should be kicked out of a private school? How about a Stalinist? A Holocaust denier? An unapologetic Hutu nationalist?

                I’m curious what the bounds and parameters of your crimethink meter are?

            2. So on the basis of 11 seconds of video, in a groupthink and conformity-inducing environment, we can accurately judge the content of these young men’s characters?

              Yes. See, I’m judging them based on something relevant to their character, like their actions (either instigating a racist chant, or following along with it like a mindless twit), and not something irrelevant to their character, like their skin color.

              That’s judicial, not prejudicial, so I don’t see the irony.

              1. And surely there is not a single isolated 11 second period anywhere in your life where if someone filmed you without your knowledge at that moment and it went viral that would create an impression of you wholly antithetical to who you really are as a person. Right?

                I can’t be the only one whose had uncountable 11 second interludes in my life where I’ve said something so profoundly disturbing, depraved, and awful that it makes SugarFree erotica look like Pixar script.

      2. In that context, nothing.

        I assumed something different.

    2. It seems like it’s a pretty accurate summation of libertarian beliefs about freedom of association.

      If universities were not public institutions, they should have the right to decide based on whatever criteria they wish who goes to their school.

    3. I retract this statement. I get knee jerky with the speech portion of the 1A at the expense of the association part.

  4. This pretty much sums up my thoughts on the matter.

  5. Publicly shaming these idiots should be sufficient, but apparently that’s not good enough for the perpetually aggrieved. I think Playa Manhattan said it best when he described the whole scandal as “grief porn”.

    Now the university is about to give the expelled students a major windfall when they sue for civil rights violations and damages. As the Westboro Baptist Church has shown, it pays to troll the PC crowd.

    1. As the Westboro Baptist Church has shown, it pays to troll the PC crowd.

      In fairness to WBC, they managed to simultaneously troll the Left’s PC crowd and the Right’s military fetish with equal verve in the same fucking act. They are the level 99 master trolls of the world. A few frat boys drunkenly singing a song could never hope to approximate their skill.

    2. Not only that, but I think that ostracizing any and all racists (and people who make racist remarks, this sounds more like dumb frat-boy shit than serious racism) from polite society is probably counterproductive at this point.

  6. Also, I’m not seeing any posts from Bo, though people are apparently responding to him. Was he banned and the posts he made scrubbed from the thread?

    1. No, he just went crazy and has been trolling for the last two days about how everyone but Bo is some sort of perpetually outraged white man, if not an active racist.

      It’s pretty hilarious.

      1. I think he started displaying his insanity with the Scott Walker/college thing.

        1. He succumbed to Walker Derangement Syndrome.

      2. Although, on the plus side, I’m now the Colonel of the Offended White Guy Brigade.

        So, at least I’ve got that going for me.

        1. I’m pleased to meet you, Colonel Angus.

        2. Awaiting your orders, Colonel Dean.

          1. You may lay fire on targets of opportunity, Mr. Shrubber.

    2. He went from regular asshole to full on troll pretty quick yesterday.

    3. Yesterday we learned that it is impossible to hold the following three positions without being an Offended White Guy Gamergater:
      1. That the students are racist assholes.
      2. That their 1A rights have nevertheless been violated by the university.
      3. That there are more important stories, but the media have decided this is the outrage du jour to discuss ad nauseam, for a few more days anyway.

      If not for Bo’s keen insights, we wouldn’t have understood this.

      1. I’m frankly surprised Obama hasn’t chimed in yet.

  7. I’d rather these 2 guys have to face black professors, employees, students, etc every single day – looking them in the eye as they try to interact and pretend that the video doesn’t exist. I’d start up a pool on how long before they break and attempt a half assed apology or something. I can’t help but feel like getting expelled spares them of some degree of social backlash.

    1. I’d rather these 2 guys have to face black professors, employees, students, etc every single day

      Here’s the thing: I’m willing to bet that the Dean’s decision to expell these two students is as much about avoiding the prospect of violence towards these students as it is about caving into SJW pressure. I imagine there is some concern that any individual on campus identified in this video is likely the target for violence by the offended.

      1. Nah, I think the Dean expelling these students so quickly has a lot more to do with saving recruiting for their athletic programs.

        1. Interestingly enough, the day after Stephen A Smith called Philadelphia Eagles’ Head Coach Chip Kelly a racist, Chip Kelly makes a mind-numbingly stupid trade for OU alumnus Sam Bradford.

        2. agreed – they certainly care more about the football team than they do about almost anything else – including academics considering the babbling chimps they allow in on “scholarships”

      2. the Dean’s decision to expell these two students is as much about avoiding the prospect of violence towards these students

        Ah, yes. The heckler’s veto.

  8. I am a big fan of voluntary assembly (another 1st amendment right – why does one trump another) and not subsidizing the education of racists. Now granted UO (why OU?) is public, but people should not be forced to congregate – much as a baker should not forced to bake a cake.

    1. “but people should not be forced to congregate” – who is being forced to do anything – except the students who are being forced to leave school for exercising their first amendment rights?

      As far as determining who should be ” allowed” on a college campus, If it was a matter of personal beliefs, it would be easy to exclude almost anyone- everyone has beliefs that offend someone and if they don’t they are probably not intelligent enough to warrant being in college.

  9. One thing ive noticed that is absent from the blogosphere: where are all the je suis charlie hebdo people standing in solidarity with these students’ right to say something offensive without being attacked or punished?

    1. Right here.

      And yet I’m walking largely alone because in a U.S. context, anything that alludes in a nostalgic manner to the atrocities of yesteryear is a violation of the most sacred of all PC shibboleths.

      1. I have been saying the exact same thing. I fail to see how being a racist alone or saying racist things in private should be grounds for expulsion from a university.

        We of course are just part of the offended white person brigade according to Bo.

        1. I fail to see how being a racist alone or saying racist things in private should be grounds for expulsion from a university.

          Yeah, that really gets into thought-policing there. I could see punishing the fraternity and having a talk with the relevant members if this was part of some organized activity.

          Another big part of it is people still haven’t figured out that everything is on video these days. They got in trouble because there was a video recording of the ugly song. Maybe they should be punished for being fucking morons. Whether or not it’s reasonable, you have to know that singing a racist song at college in 2015 is going to cause a major shitstorm, at the very least if anyone finds out.

          1. People have to understand that we don’t have as much privacy as we used to. And by that I don’t mean watch what they say. I mean stop going insane over every clandestine video that is released. I don’t want to live in a world where everything I say is treated as if I did it in public.

            1. I don’t want to live in a world where everything I say is treated as if I did it in public.

              I agree. But unfortunately, the world is full of people who want to get in everyone else’s business. My solution is not to put every stupid thing I do when I am drunk on the internet for the whole world to see.

          2. “I could see punishing the fraternity” – you can’t really do that either, Its first amendment rights denial just on a group level instead of merely on individual level which is just as bad.

            Groups have just as much right to say stupid and offensive things as individuals do otherwise we can ban most of the groups on campus – feminists and gay groups say things that are offensive to conservatives and christians , black groups say things that are offensive to whites – Leftists offend libertarians and conservatives, stoners offend straights and law enforcement etc,,,,,,,its the free exchange of ideas which is a huge part of what a University is all about

    2. That’s only for Europeans.

      Over here, it’s OWGB all the way down.

  10. As an SAE, I find this entire incident embarrassing and completely opposite of all of the ideals that SAE brothers are supposed to adhere to. Before one can be initiated, one must recite the creed of the True Gentleman, and the chant was the complete opposite of everything in that creed. We had black brothers in my chapter, and would have expelled from the fraternity any brother who tried to lead such a chant–which leads to the real point–This is a matter for the Fraternity to punish and not the university. No one thinks less of OU because it admitted a couple of Yahoos who managed to have the grades, standardized test scores, and extracurricular activities to meet the admission requirements. But everyone thinks less of a social organization that selected those same Yahoos for membership based on their social attributes. State supported educational institutions have no business punishing people for their anti-social thoughts. Indeed, punishing speech undermines the educational mission by limiting debate. Those anti-social thoughts, however, go to the heart of what a private social organization is about, and punishment from the organization in this case furthers the purpose of the organization. . I am proud that the national fraternity has taken away the chapter’s charter, and hope it will expel these “leaders” from the fraternity because they have no business in SAE.

    1. all of the ideals that SAE brothers are supposed to adhere to

      MUST. NOT. MAKE. DATE. RAPE. JOKE.

      …Shit.

    2. But seriously, your point is a good one. Public shaming/shunning is powerful and probably sufficient to to take care of this kind of idiocy when it pops up.

    3. Adamsmith, let me ask you… was this EVER part of SAE, and if so when did it go off limits? That chant is stupid, its not funny, I just cannot see why anyone would have ever wanted those words to come out of their mouth.

      I can see some forms of actual racism being intellectually consistent, but this example is just the worst, stupidest, most offensive for no benefit to anyone. Can you comment further?

      1. No. This was never part of SAE. The tune is from a drinking song that has a lot of different lines, but I never heard that one, and cannot believe it would have spread from one chapter to another. We did a lot of stupid things, and I often thought College was a holding tank to let us get the stupid out before we entered the real world. But there s a big difference between stupid and mean.

        I should also point out that the only difference between fraternity stupid and non-Greek stupid was that we had an organization that people could put a target on.

  11. I am very sympathetic to the idea that state run schools are a bad idea. That being said, however, I don’t think that “if we didn’t have government schools college Presidents would be free to expel students for any reason without any fact finding or due process” is a particularly good reason why state schools are bad.

    This post seems to be arguing that the state needs to get out of the university business so that University Presidents can expel and punish students with no worries about due process or fairness. I am not seeing how taking that stand, even in support of the Libertarian end of ending state schools, is a very good idea.

    1. It certainly isn’t high on the list of problems with state run schools. But it would make it a problem of a particular schools administration and not a national political issue, which would be good, I think.

    2. so all schools should be “for profit”?

  12. I agree but even “private” universities receive massive direct and tax subsidies from the state. And the state uses that fact to manipulate them in all sorts of ways. So Iong as they take “the King’s shilling” they most assuredly will march to the King’s drumbeat.

    1. agreed – that is why some universities refuse to accept government money – it distorts and corrupts their independence.

      the seduction of government money is very strong and it corrupts everyone it touched .

  13. Any punishment for whoever leaked the video? I mean, would anyone on campus have felt threatened or offended if the person with the camera hadn’t spread the recording?

    1. Look, we only use Schenck against undesirables. The leaker did a service to the community, so of course he shouldn’t be punished.

      /derp

  14. my buddy’s step-sister makes $76 an hour on the laptop . She has been without work for six months but last month her income was $17228 just working on the laptop for a few hours. visit their website……..

    ????? http://www.netjob70.com

  15. from what i understand, like when joining the military, entering a school, u lose some of your constitutional rights…but this pales to what the Patriot Act did…so dont sweat the small stuff

    1. Ummm ….. wrong again! just because a person enrolls at a state (read socialist) school, doesn’t mean that you surrender ANY of your individual or group rights. Now, the school administration would like for your to believe that (just like almost every government entity) and try to claw back on the constitution but in fact, it cannot. The rights in the constitution are guaranteed and granted by nature (or god if you are so inclined) and cannot be removed from you.
      They cannot conduct illegal searches and seizures, cannot restrict your right to speech and cannot punish you without due process of law.

      Now the military is a different situation because you volunteer to become part of the government.

  16. The expulsion was illegal and would not be allowed by ANY court. It will be overthrown.

    Kicking the fraternity off campus will be overruled by any court and will be very costly for OU, or should be.

    This is only demonstration of the power of humans to misbehave while using free speech.
    Doing this causes other humans to be angry and violate fundamental human rights in order to punish.

    The OU debacle just lowered OU morality to EXACTLY beside the killers of the “Charlie Hebdo” cartoonists.

    I am not an interested party in any way in the court battles that will result.

    The fraternity should have told OU to send well-armed police to invade them or take a flying leap.

  17. My last pay check was $9500 working 12 hours a week online. My sisters friend has been averaging 15k for months now and she works about 20 hours a week. I can’t believe how easy it was once I tried it out. This is what I do

    http://www.wixjob.com

  18. Private schools are good, state run schools are good, the constitution is good. This is just mass hysteria. I was hoping Reason would be more focused on that aspect.

    Libertarian philosophy shoots itself in the foot when it presents its approach as the only way. Public schools represent competition and competition is good.

    1. and absolutely nothing you have said makes any sense at all. You might as well have said peanut butter is good, jelly is good, rice krispies are good……

      Libertarianism is a political and social philosophy – all philosophies compete in the arena of ideas so yes an adherent to one naturally believes their ideas to be superior – or else why bother believing in anything? GOT IT?

      Public schools do not believe in competition. They believe that all education should be run by the state and fiercely fight for every education dollar they can get their greedy unionized fingers on.

      Apparently you are either:

      A. still in the fourth grade or
      B. your mental development arrested at the fourth grade level
      this is a website for a serious discussion of the issues by REASONably educated individuals not a sunday school
      for idiots who couldn’t find their ass with both hands

  19. Damn, you’re good! It’s B.

  20. Apparently, my last attempt at a coherent comment failed miserably. I’ll admit, not my best work, so I’ll try again.

    As it relates to the article….

    Both private and public schools are good to have. Each approach is competition for the other. That, in turn, gives some protection against an uneducated class (people like me, for instance).
    And while I do identify as a Libertarian, I understand, accept, and want to work within the context of our modern, real world. Since Libertarians don’t seem to be having much success at the ballot box, I think a better, more practical approach is to present Libertarianism as a set of guiding principles rather than an absolutist blueprint. Obviously, these are not original thoughts, but as many of you are well aware, Libertarians are sometimes seen as elitist white male assholes. Clearly, nothing could be further from the truth. That was what I was attempting to convey.

    As it relates to SAE…

    We are in the midst of a mass hysteria. I believe this may have dire consequences for our liberty. I was hoping Reason would be more focused on that aspect.

    1. you’re right – its definitely B

      ” I understand, accept, and want to work within the context of our modern, real world.”

      in other words you “accept” every argument and construct as it is defined by other philosphies – namely conservative, socialist and neo-con.

      That like the prosecution asking an innocent defendant “when exactly did you start raping women”. The framing of the question presupposes the answer. If we “accept” poor ideas as given then there is nothing left to discuss. Most of the constructs that exist in the “modern world” progressive income taxes, social security government intrusion into the private and financial affairs of citizens etc… all didn’t exist 100 years ago – someone changed the rule and didn’t accept the status quo. If you want to change it back to something reasonable then you better stop “accepting” this as carved in stone -because its not – and furthermore – most of it is unconstitutional as well as impractical and immoral.

      If you can’t get the balls to do so i suggest going back to Yahoo or the Huffington post —- which are websites for mental midgets. In the meantime don’t post until you actually know something about what you are writing.

      1. Damn! You’re a real piece of work. Stay classy.

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