“Woke up an optimist / Sun was shinin’, I’m positive / Then I heard you was talkin’ trash / Hold me back, I’m ’bout to spaz.” — Kanye West
On Tuesday, University of Oklahoma’s President David Boren expelled two SAE fraternity members from the school for their “leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”
By now you probably have seen and heard the infamous lyrics that some of Sigma Alpha Epsilon members gleefully sang on their bus. Some legal scholars believe it is unconstitutional for the University of Oklahoma to have expelled the fraternity brothers of SAE for their racist chant. In a recent post, Eugene Volokh writes:
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First, racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech… Likewise, speech doesn’t lose its constitutional protection just because it refers to violence — ‘You can hang him from a tree…’
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.
Erwin Chemerinsky, a constitutional scholar at UC Irvine, also doesn’t believe there is evidence of any direct threat or provocation. Chemerinksy reminds us, “The courts are very clear that hateful, racist speech is protected by the First Amendment.”
Others like USC Law Professor Daria Roithmayr believe there could be a “plausible argument that the students’ action caused a ‘material disruption’ in the university’s educational mission and was not protected by the First Amendment.”
New York Times Op-Ed Columnist Charles Blow warns us that the vileness displayed on that bus is a “reflection of the distance that must still be covered, and the rigidity of racism and the casualness of hate. It can wear a smile and be set to a tune. We have to understand what that hate is. Hate is never about the object of the hate but about what is happening in the mind of the hater.”
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Perhaps these type of rants are even more alarming because fraternities are often associated with privilege. Data also suggests that fraternity culture is influential in shaping tomorrow’s leaders. In his book, Inside Greek U: Fraternities, Sororities, and the Pursuit of Pleasure, University of Kentucky Professor Alan DeSantis writes:
Fraternity men make up 85 percent of U.S. Supreme Court justices since 1910, 63 percent of all U.S. presidential cabinet members since 1900, and, historically, 76 percent of U.S. Senators, 85 percent of Fortune 500 executives,and 71 percent of the men in “Who’s Who in America.” And that’s not counting the 18 ex-frat U.S. presidents since 1877 (that’s 69 percent) and the 120 Forbes 500 CEOs (24 percent) from the 2003 list, including 10—or one-third—of the top 30. In the 113th Congress alone, 38 of the hundred Senate members come from fraternity (and, now, sorority) backgrounds, as does a full quarter of the House.
Volokh and others argue 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,” while my colleague Elie Mystal and others believe that there is a “true threat” of violence, and it is terrifying.
As I mentioned last week, the First Amendment protects our freedom of speech. It gives us the right to openly communicate our opinions and ideas. In our great country, people can say whatever they want, but this doesn’t mean they won’t be judged for it. Now these students are facing real serious consequences for their actions. If there isn’t a “true threat” of violence, what do you consider the “true threat” of these students’ rants? In other words, does the punishment fit the crime?
According to President Boren’s letter, the students have until the close of business today to contest the university’s decision. If the students were to appeal their expulsion from the university, how do you think the Equal Opportunity Officer should rule? How would you rule on the merits of this case?
Renwei Chung is a 2L at Southern Methodist University School of Law. He has an undergraduate degree from Michigan State University and an MBA from the University of Chicago. He is the author of The Golden Rule: How Income Inequality Will Ruin America (affiliate link). He has been randomly blogging about anything and everything at Live Your Truth since 2008. He was born in California, raised in Michigan, and lives in Texas. He has a yellow lab named Izza and enjoys old-school hip hop, the NBA and stand up paddleboarding (SUP). He is really interested in startups, entrepreneurship, and innovative technologies. You can contact Renwei by email at [email protected], follow him on Twitter (@renweichung), or connect with him on LinkedIn.