Volokh is not the court. He is just a lawyer. He appears to be a supporter of Clarence Thomas and Scalia.
“Moreover, my interest is not in whether the university had the right to expel the students in the present case (I would say they didn’t) but whether they would have the right to expel the students if the speech had been public.”
This has been asked and answered, CF.
The lawyers on here seem to have been very clear that the specific facts of the case would be material – such as one-time versus repeated, how public the speech was, who was around to hear it, other behaviors, etc.
You seem to desire an “on/off switch” for what constitutes a) a hostile environment and / or b) harassment / threat, and I think what they are telling you is that there is no simple on-off switch for that determination.
“So, one dissenter out of many. I think the majority opinion holds.”
Here is another dissenter - one who is a Professor of Constitutional and International law at Harvard who doesn’t believe Boren violated the students’ rights.
“First amendment rights are not unlimited. These are not just silly harmless kids I would not want my kids anywhere near them. These kids create hostile environments which are blatantly illegal and morally wrong in virtually all settings”
Is that your legal point of view, floridadad?
BTW, there are plenty of people who have poor morals who I don’t want my kids hanging around, but that doesn’t give me the right to say they should be expelled from a public university, any more than that gives me the right to say they should be expelled from my town.
I do not find this idea offensive, just illogical on its face.
This concept is equivalent to outcome-based education where if a school graduates more students then it is assumed the students are actually educated. Well, no, and that has been proved.
But, do people not get how truly racist this idea is? I speak as someone who is part of a couple groups of which there are no black members. Have black prospective members applied? Yes. Were they accepted? None, so far. Why? The main issue is they did not fit for a variety of reasons, varying from candidate to candidate, often each candidate for multiple reasons. For example, one commented we needed to upgrade the music at our events. No, we like our Rock-n-Roll and not about to change. So, nixed him. One wondered why we were all skiers? Well, because we are. Nixed him as he was not interested in our skiing trips. A couple we just did not like; meaning as with all people, sometimes people do not get along, etc.
Now, we could have been racist as can be and accepted them just because they were black and it would make us look inclusive, even though in reality we would have little in common. But, looks are political, i.e., symbolism over substance and we leave that fakery to others. Therefore, no black members yet, and we have rejected white candidates for the same reasons. If someone applies with which we have a majority in common and they truly like what we do, then they have a great chance to be accepted.
The public dissemination of the video caused the material disruption, if there was one.
The videographer could have taken the tape straight to Boren’s office. But he or she didn’t do that.
OK, we now have 2 out of many.
The lawyer, Jones, is having a news conference this afternoon. It’s unclear if he is representing the SAE fraternity, the unexpelled members and/or the two who were expelled.
The link didn’t work for me, but here’s the meat of what Noah Feldman says:
Imagine this case went to the USSC. How do you guys think it would be resolved?
By the way, Feldman is trying to make an argument for a public university’s behavior by repeatedly referring to a private employer’s behavior. Of course, we all know that First ammendment rights are rather thin in private settings. So I am a bit amused that a legal professor would conflate the two. But still, he is the lawyer, so I take his opinion at face value.
2 out of many now.
I remain skeptical regarding the expulsion of two students, but I think the University was well within its rights to sanction the fraternity, which it charters. Correlation is not causation, admittedly, but it’s hard not to perceive a very, very strong correlation between a fraternity only pledging two African-Americans in its history, and none in more than a decade, and its lily-white brethren considering a homicidally racist chant suitable for a formal, social event (where they would almost certainly be recorded on someone’s camera-phone). The University had to make the strongest possible statement it could, to state that it remains committed to including all its students in campus life. The expulsions probably went beyond permissible measures, but they needed to promptly declare this behavior as irreconcilable with their mission and philosophy. I don’t believe that those fools ever contemplated lynching a fellow student, but I do believe they consider African-Americans unworthy of their association. By extension, that would imply they consider African-Americans inferior, and undeserving of equal employment and educational opportunities. They can turn around and say they’re just kidding, but the evidence indicates that, over the past dozen years or so, the brethren of SAE are as racist as their chant proclaims.
"The public dissemination of the video caused the material disruption, if there was one.
The videographer could have taken the tape straight to Boren’s office. But he or she didn’t do that."
But but but…according to so many people on this thread the way to fight racist speech and behavior is to expose it.
As an aside, stop typing so fast! I am trying to keep up here, just reading along, and every time I look at CC another ten pages of comments has appeared on this thread.
Seriously, thank you all for the tutorials. I’m learning a lot.
Forming my opinion on this case by counting noses of published opinions on the case from constitutional scholars, rather than reading and considering what the constitutional scholars have to say, is deeply uninteresting. I think it’s bizarre to even suggest such a thing on a CC thread.
Not sure that is a break at all. I’m sure Dean Chem, a noted constitutional scholar and academic, would also say that a “case could be made…” (Many professors would discuss both sides of an issue.)
No doubt Boren will make that ‘case’. Doesn’t mean it holds water, just that it is arguable.
“OK, we now have 2 out of many.”
But you opined. “Note that not a single Constitutional scholar has come ahead and said that the actions of the university are legal. To the contrary, every single such scholar who opined on this issue in public have said that the university broke the law. (I am happy to be proven wrong on this, of course, so would welcome citations from you.)”
You certainly don’t seem happy to be proven wrong. Your statement(s) when shown the proof you asked for seems quite dismissive, in fact.
Well, I guess the alternative is to flat out ignore what an overwhelming majority of Constitutional scholars are saying, pick a minority opinion that supports the dissident view, and quote that on CC.
“Well, I guess the alternative is to flat out ignore what an overwhelming majority of Constitutional scholars are saying, pick a minority opinion that supports the dissident view, and quote that on CC.”
You seem to be saying that my opinion and the facts that go towards supporting my opinion are not worthy of being posted because it is a minority opinion.
If you do not want to read opinions that differ from your own - I suggest putting me on ignore.
TatinG, you said you went to law school. I asked you an easy question.
Are you a practicing lawyer?
Is that question too invasive?
LakeWashington: Jones was appointed to be McVeigh’s attorney. Everyone, no matter how heinous the crime or how guilty the perpetrator, has the right to counsel. I don’t think the public would hold his defense of McVeigh against him. Attorneys have a duty to defend the clients and apparently so many attorneys in Oklahoma knew some of the victims that the judge appointed Jones to defend McVeigh.