"Rice’s grandmother was JoAnn “Jody” Johnston, who passed away in 2011. According to her obituary, she was a member and later alumni advisor to the Tri Delta sorority at the University of Oklahoma. That sorority was widely reported to also be on the bus where the infamous racist video was filmed. "
Gee, what a “connection.” SAE at OU apparently hangs around with TriDelts. This guy’s grandmother was a TriDelt so clearly it’s All Part of Some Big Conspiracy. Good lord. Every house tends to have a “partner house” that they do things with.
^^^^^^^TatinG, I don’t disagree that political moves often violate the Bill of Rights. One can find examples of this throughout American history, especially promoted by those who presumably do have knowledge of the Constitution, e.g., Adam’s and Jefferson’s use of the Sedition Act, the various civil forfeiture laws, the Patriot Act, and, I daresay, several recent SCOTUS decisions. I don’t necessarily agree with the way Boren handled the controversy, but I’m merely pointing out that, above all, he’s a politician.
@TatinG It does no good to presume everyone who disagrees with you on the limits of free speech is ignorant about the Bill of Rights. The Bill of Rights is interpreted by the Supreme Court and each Justice is swayed by whether he or she is conservative or liberal. Equally smart, well-meaning Justices as well as members of the public can disagree. Professor Volokh sides with the conservative Justices - good for him.
I think Volokh’s article addresses the hostile environment claim, bearpanther, and the other issues.
One of the short answers is that statutes are subject to the Constitution as are campus handbooks detailing ‘speech codes’.
As a sort of aside, I was just reading a book on slavery in the South. One chapter talked about the abolitionists sending abolition newspapers to post offices in the South. The state governments would round up those newspapers and burn them saying that such articles could foment slave rebellion and created a dangerous, dare I say ‘hostile environment’ for the slaveholders.
I don’t think anyone today wouldn’t see that as a clear First Amendment violation.
Excuse me, Pizzagirl, but 3,500 African Americans have been lynched in this country. It is not far-fetched for some AA student to feel genuine fear over the words of that song.
Actually, it sounds like they are going to use Title IX to argue the hostile environment claim as a work around the free speech issue. But they are going to need something beyond a sing-a-long on a bus to get there. Maybe, they have it. Maybe, they don’t.
I read Volokh’s stuff, and I also took a look at the primary case he cited for his thesis. See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F. 2d 386 (4th Cir. 1993). I’m not a Constitutional scholar or any sort of academic, but it seemed to me that the concurring opinion was at great pains to point out that GMU could have regulated the students’ speech in pursuit of educational goals. (See below.) And I think that element of the analysis is likely to be important here. As long as Boren and OU’s lawyers have a hook in university policies to show that students were on notice that racist speech would not be consistent with the privilege of remaining a student in good standing at the University of Oklahoma, I have a hard time believing that a federal court would find a First Amendment violation.
I think everyone agrees that Boren acted properly when he evicted the fraternity from university-owned housing. That is the means by which the fraternity was capable of engaging in racial discrimination.
The question is whether Boren can go further and expel students for their spoken words. It seems clear Boren is claiming the words created a hostile environment and that is his basis for expelling them.
From the OU regulations (not sure of the exact source since a friend sent it to me unreferenced):
"Enrollment in the University creates special obligations beyond those attendant upon membership in general society. In addition to the requirement of compliance with all applicable laws and regulations, the student assumes the obligation to comply with all applicable University and College regulations.
It is the responsibility of all students who are potential parties or witnesses to an alleged violation of the Code to participate in the conduct process. Students have a duty to cooperate and discuss the incident with
appropriate University officials, adhere to stated deadlines, attend scheduled meetings, provide documentation as requested and participate in all proceedings. Failure to meet these duties may result in a decision being made without the benefit of the student’s participation, or may result in a student being charged with failing to comply with the direction of a University official.
Prohibited Conduct:
These definitions include, but are not limited to, the following:
Abusive conduct: Unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating. These circumstances could include the frequency of the conduct, its severity, and whether it is threatening or humiliating.
This includes physically abusing a person or holding a person against his or her will. Simple teasing, offhanded comments and isolated incidents (unless extremely serious) will not amount to abusive conduct."
Does OU require its students to sign some sort of contract or Code of Conduct? I’m sure that the fraternities have to observe some regulations, and their leaders might well be obligated to uphold those rules as part of their charter. Members of the military are not permitted to express themselves publicly as much as the rest of us, despite the fact that they work for the government. I do not need anyone to reply patronizingly: I am quite familiar with the Constitution and the Bill of Rights, and I generally consider myself a strong proponent of both. I also know that those rights are limited in many respects. I do not have the right to make harassing or obscene phone calls to whomsoever I choose. I imagine that OU has restrictions on posting flyers, using university facilities, infringing on copyrights, etc. Although they are state-chartered, I don’t think that every resident of Oklahoma has free access to buildings on campus. I imagine that a professor has the right to kick a disruptive student out of his class. I am squeamish about the actual expulsion, but I have to presume that President Boren understands his university’s by-laws better than I do. There is an appeals mechanism in place. I can’t blame him for wanting these clowns off campus for at least the next few days, and to be sure that - if they are allowed to remain - those students will be on very thin ice for the rest of their undergraduate careers.
Is it far-fetched for women to feel threatened by “Hey Joe” by Jimi Hendrix? I am asking a completely serious question. The song spooks me out – I hate it. Is it legitimate for me to claim that as a woman, I should feel genuine fear over the words of that song, and that if a fraternity or other organization were to play it at a dance, they have created a hostile environment?
Are we discussing the First Amendment as it has been interpreted by the Supreme Court since Tinker, or the First Amendment as one poster here would like for it to be read?
All the text says is this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Its application in schools and universities is purely a matter of judicial construction.
@SomeOldGuy, the part of the Iota Xi v George Mason decision you quoted was not from the decision itself, but from Murgnahan’s concurring opinion. In the decision itself, the court held that the skit was permissible conduct because it was live entertainment, which is generally protected.
I doubt that a court would hold that SAE’s singing of a song on a bus was live entertainment and thus protected by virtue of the protection of artistic expression.
^If there have been several incidents in which this song led to violence against women, you would be reasonable to feel genuine fear over that song playing at a dance.
That was my point, however poorly expressed. Iota Xi is easily distinguishable from the OU fact pattern, and the commentary in the concurrence could be particularly relevant.
Though campus codes do not trump the First Amendment, cannot adherence to such codes be made a condition of continued affiliation with a university or other voluntary membership organizations?
“Why is this well heeled, well educated frat boy spewing hatred towards nameless minority OU students?”
There are several possibilities. One is that he really does hate black people, he’d spit in the face of the black chef employed by the house if he could, and if a black person were on fire, he wouldn’t p*** on him to put it out.
The other is that he was stupid and drunk and thought it would be funny to sing something stupid that he heard and get the bus to sing along. As 18 yo boys will be – goofy and stupid and politically incorrect.
Right now, we don’t really know which is the truth.