Rondo, you asked how I thought the Supreme Court would rule on this case. With the facts as they are, I’d think they’d rule that the university had the right to throw out the fraternity, but not to expel the students for speech that was private.
But I’m not sure how the Supreme Court would rule if the speech had been public. That’s why I want to see some case law that would shed light on the issue. Chaplinsky says that some speech is both so offensive and so not the essential exposition of any ideas that it is not protected. It s would be easy to argue that white students singing a disparaging song including the n-word might qualify is just such speech, precisely because of what JHS brought up upthread: The students weren’t actually advocating lynching. They were just being louts.
“Chaplinsky says that some speech is both so offensive and so not the essential exposition of any ideas that it is not protected. It s would be easy to argue that white students singing a disparaging song including the n-word might qualify is just such speech”
Here is another Boston College Professor of Law who argues similarly"
“No one with a frontal lobe would mistake this drunken anthem for part of an uninhibited and robust debate about race relations. The chant was a spew of hatred, a promise to discriminate, a celebration of privilege, and an assertion of the right to violence–all wrapped up in a catchy ditty. If the First Amendment has become so bloated, so ham-fisted, that it cannot distinguish between such filth and earnest public debate about race, then it is time we rethink what it means.”
And:
“The way we interpret the First Amendment need not be simplistic and empty of nuance, and was not always so. The Supreme Court unanimously held over eighty years ago that “those words which by their very utterance inflict injury … are no essential part of any exposition of ideas.” And in 1952 the Court upheld an Illinois statute punishing “false or malicious defamation of racial and religious groups.” These rulings, while never officially reversed, have shrunk to historical trinkets. But they mark a range of the possible, where one can be a staunch defender of full-throated discourse but still recognize the difference between dialogue and vomitus.”
It is interesting and perhaps instructive to look at how four universities who have had free speech issues lately have handled them.
U of O- expulsion
UCLA-referring to the student government members who questioned whether a Jewish girl could be fair. No consequences other than an apology.
UC Davis-Muslim students who shouted “Allahu Akbar” and other things at Jewish students-no consequences.
UC Irvine-student who said that the American flag was a symbol of divisivenss, colonialism, imperialism etc. and wanted it taken down in their offices-no consequences.
One wonders whether the advice of counsel had something to do with the UC decisions.
I see a lot of outrage from this Boston College Professor of Law, but even he seems to admit that the current treatement of the First Ammendment would protect racist speech. He clearly doesn’t like it, but that’s neither here nor there. A lot of people don’t like the First Ammendment because it protects speech that they personally do not like and would like to censor.
SAE (the national) says it is not participating in any lawsuits regarding this case. http://www.sae.net/oklahoma
As a private organization, SAE can suspend/expel members following whatever procedures are available under its bylaws/regulations.
I’m not at all clear on what the students (other than the two expelled students) can sue? If SAE (National) decided to close the chapter, do the students have any cause of action against OU because the master lease was terminated with agreement by both parties (OU and SAE)? The housing issue seems to be unlikely as a useful basis for a suit.
If they’re trying to claim that Boren’s statements are slanderous, I’d think that would also be an uphill climb.
Cardinal Fang, If you agree that the USSC would conclude that Boren violated the First Amendment rights of the two kids, then we are all good. As a strong left-leaning research academician, obviously I have a huge soft corner for the First Amendment. As for the rest - whether the frat should stay or go, what would have happened if the kids chanted it in borad day light in the town square while standing on their heads - is of little interest to me, the former more so than the latter.
The latter though would likely hold up under scrutiny in the USSC from what I read of case law as quoted in the various links from Constitutional scholars floating around this thread. That does warm my heart. I feel that it is a shame that a Democrat politician would oppress First Ammendment rights, but then Democrats are not all the same across the country.
TatinG, don’t be so quick to dismiss the impact of politics and public perception in this entire affair. President Boren surely knows that expelling them solely for speech wouldn’t fly in court, which is why he would hang his hat on the hostile environment argument and whatever other violations of school policy he can throw at them.
Well, there’s California, and then there’s Oklahoma …
Unfortunately for him the Constitution trumps OCR and whatever school policy he can dredge up. After all, he leads a public university. May be he forgot about that …
In one article I read about the alumni hiring the attorney, that’s what the alumni were objecting to: that Boren had called the kids on the bus bigots.
“I see a lot of outrage from this Boston College Professor of Law, but even he seems to admit that the current treatement of the First Ammendment would protect racist speech.”
I didn’t post it because he agrees with the majority opinion. I posted it because he concurs with what Chaplinsky said - that some speech is both so offensive and so not the essential exposition of any ideas that it is not protected.
"Given that the speech was literally designed to inculcate the value of racial discrimination by making pledges recite their commitment never to admit a black member to the fraternity, this conclusion seems plausible. "
It was not a speech. It was a silly ditty, of which any fraternity has dozens – this just happens to be a particularly vile and offensive one. I think some of you don’t even get that half these ditties are meaningless to the people when they sing them. In that regard, they are somewhat like college fight songs. Do you think that Georgia Tech students are actually thinking seriously about whiskey when they sing “Like all the jolly good fellows, I drink my whiskey clear, I’m a Ramblin’ Wreck from Georgia Tech and a hell of an engineer”? Or is it just a stupid thing that people sing in certain circumstances?
Some of you people are just completely so bizarre and off-base in how you think Greek systems work, because you’ve made up stuff in your own minds as to how it all works.
You seem to think that there are Codified Grand Black-Hating Rituals That Are Solemnly Passed On to New Brothers All The Way from SAE National, where they are required to affirm commitments never to admit black members and to promote violence against them whenever possible.
The logical explanation is that this was a stupid upperclassman teaching something he thought was witty and daring to a bunch of stupid freshmen, and all were stupid and drunk enough to sing it outside of a brothers-only setting. Stop making this a meeting of the KKK when it wasn’t.
We don’t say the song was passed on from SAE national. We say that it is passed around SAE chapters. Nothing controversial about that: the SAE national admits it. Some other SAE brother from somewhere taught that song to the kids on the bus.
The local SAE chapter admits that the lynching song has been around at SAE for three or four years:
Those fraternity brothers had a long time to scotch the disgusting song. They didn’t. For three or more years, they knew about the song and didn’t stop it.
Also, Roithmayer did NOT say this it was a legal action, and therefore dissent, with the other Constitutional Scholars. She said it might have been legal. There is a fine, but important, distinction.
In laymens terms, we have numerous; “it was illegal” votes; one “it might be illegal”, and zero saying it was legal.
How do you know these kids don’t have Klan affiliations? How do you know they wouldn’t follow through on the threat in the song if they could get away with it? Do you personally know any of these kids or their families? No, probably not. You are making assumptions, too, PG. Lots.