Second SAE Video: Even the 79-Year-Old House Mother Was a Racist
First Amendment experts react to the University of Oklahoma news.
Beauton Gilbow, the 79-year-old house mother of the University of Oklahoma's Sigma Alpha Epsilon chapter, denied that she had ever heard the brothers engaged in the kind of racist chanting caught on video recently. But according to a Vine uncovered by BuzzFeed, Gilbow had actually participated in some racially-charged singing at SAE herself. Watch that here.
Gilbow recently appeared alongside friend Barry Switzer—an SAE alum and former OU football coach—to insist that nothing like this had ever happened:
"Did you ever get any indication there was anything like this going on?" News 9's Kelly Ogle asked.
"No, no, no. Never heard the song," Gilbow responded.
Switzer maintained that the infamous video was not representative of the brothers at SAE:
I spent some time over here, and I know what they're like. I wouldn't put up with that crap, and they don't either, and they don't believe in it.
It's tough to accept his evaluation, however, given that he's sitting next to a liar. The evidence so far suggests that the latest (and final) incarnation of OU's SAE had serious problems with racial insensitivity, and may have illegally discriminated against black applicants to the fraternity. The national organization was right to kick them to the curb.
The actions of OU President David Boren are less wise. The Competitive Enterprise Institute's Hans Bader and The Washington Post's Eugene Volokh have pushed back against Boren's notion that he has any right to expel students for offensive but constitutionally-protected speech. Volokh writes:
Oklahoma University president David Boren said, "If I'm allowed to, these students will face suspension or expulsion." But he is not, I think, allowed to do that.
1. 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). (I set aside the separate question of student speech that is evaluated as part of coursework or class participation, which necessary must be evaluated based on its content; this speech clearly doesn't qualify.)
2. Likewise, speech doesn't lose its constitutionally protection just because it refers to violence — "You can hang him from a tree," "the capitalists will be the first ones up against the wall when the revolution comes," "by any means necessary" with pictures of guns, "apostates from Islam should be killed."
3. To be sure, in specific situations, such speech might fall within a First Amendment exception. One example is if it is likely to be perceived as a "true threat" of violence (e.g., saying "apostates from Islam will be killed" or "we'll hang you from a tree" to a particular person who will likely perceive it as expressing the speaker's intention to kill him); but that's not the situation here, where the speech wouldn't have been taken by any listener as a threat against him or her. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the "hang him from a tree" is, neither of these exceptions are applicable here, either.
The Foundation for Individual Rights in Education makes the same point:
As a private organization, the SAE national fraternity is free to punish the chapter, as it has done. Other citizens and groups are free to refuse to associate with the fraternity members based on their expression, and students, faculty, and administrators may of course condemn it. If the expression itself is evidence of other unlawful activity, such activity may be investigated. But the Supreme Court of the United States has ruled time and time again that government institutions like the University of Oklahoma may not punish people for expression protected by the First Amendment.
By all means, private entities can punish racism whatever way they see fit. And if SAE engaged in illegal, racially discriminatory practices, it can be punished for that. But students can't be formally punished for their statements—no matter how shockingly offensive those statements are. And as I noted previously, expulsion is the exact wrong way to confront racist attitudes in this situation, if the goal is to educate these students about why their words were grossly insensitive.
