Earlier this month, Facebook, Snapchat, and Twitter exploded with reactions to students from the University of Oklahoma’s Sigma Alpha Epsilon fraternity reciting a racist song. The college students were freely singing, “There will never be a n**** in SAE… You can hang them from a tree, but they’ll never sign with me.”
The video went viral in minutes. Social media was overloaded with tweets, posts, videos, interviews, and blogs from legal experts, students, social justice activists, and everyday Americans.
In the back of my mind, I thought: What do their conversations sound like on a regular basis, when there is no camera recording? Have any of these students being paying attention to news over the last year? This was just a snippet that was caught on tape as the brothers and their dates were headed to celebrate their Founders Day.
Within 24 hours the national chapter of SAE closed the chapter and suspended the members. University of Oklahoma President David Boren first reaction to the video: “I was sickened.” Then, in a rather bold and clear statement, Boren seemingly unilaterally suspended the two students leading the chant, condemning “their leadership role in leading a racist and exclusionary chant.”
Without hesitancy, Oklahoma’s SAE chapter alumni board hired Stephen Jones, the attorney that defended Timothy McVeigh in the 1996 Oklahoma City bombing. It is still undetermined whether Jones will file suit, but it is not unlikely knowing the history between Boren and Jones.
Just yesterday, former OAU student and SAE member Levi Pettit issued an apology for his actions, flanked by people of color.
While their comments were racist and disturbing, let’s take a look at the First Amendment and Constitutional issues before us.
Is their speech protected?
The First Amendment says, “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.”
The speech of the two students who were expelled is protected. That is the First Amendment.
In the Westboro Baptist Church case, the Supreme Court ruled the church parishioners were within the protection of the First Amendment to picket “military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality.” A lower court deemed the picketing “outrageous” yet that alone, like in this OU incident, was not enough for the Plaintiff to receive recovery, and Westboro was therefore shielded from tort liability.
In other words, even hate speech is protected under our Constitution. I know that the song refers to violence, “You can hang them from a tree”, but is it still protected speech. There are exceptions to the First Amendment such as when a statement is perceived as a likely threat or when a statement is intended to solicit a criminal act. Based on the information made available to the public, none of these exceptions apply.
Was their due process rights violated?
Possibly. A part of the conversation remains whether President Boren violated the students right to due process by unilaterally expelling them? In the expulsion letter, Boren says, “as President of the University of Oklahoma acting in my official capacity, I have determined that you should be expelled from this university effective immediately.”
Oklahoma University’s student handbook lays out a process for expulsion that requires a mandatory meeting with the student listed in the complaint. At this meeting, the charged student learns about the process, can respond to allegations, and is allowed to have an advisor or attorney present. We read in the letter from Boren that the students can contest his decision to expel them within 10 days of the letter.
In 2012, a U.S. Court of Appeals affirmed that Valdosta State University President Ronald Zacarri was personally liable for expelling student, Thomas Barnes, without due process –notice of charges and a hearing, prior to his removal from campus.
Time will tell whether the students or the alumni group will file a due process lawsuit against the university and/or President Boren.
How do we educate the intolerant?
Even if their speech is protected—Does it protect them from consequences? Is intolerance acceptable in 2015? Or simply put, is racism allowed?
While you may be like me and you were completely appalled at the video, we must remember that the rights granted through our Constitution protect individuals we agree with, and also those we do not agree with.
Moving forward, we must advocate for open discussions on the societal gaps that would create comfort for a group of students to share such racist thoughts. There is nothing acceptable or entertaining (as you see the student gallantly leading the chant and several people clapping along) about referring to Blacks as “n*****” or that we should be hung from a tree.
David Cook, known as Davey D, a San Francisco State professor said, "There's no free-speech argument. It wasn't done in any sort of political context. It was something that they didn't intend to get out and it did get out, and they should be held accountable."
We need the First Amendment and other Constitutional protections more than those who misuse “free speech”—let’s pick our battles wisely and win the war!
Chelsi P. Henry, Esq., is a Florida-based attorney and business consultant. You can contact her at www.chelsiphenry.com or tweet her at: @chelsiphenry.