Reviling racism and protecting free speech: PR, education, and the First Amendment in Oklahoma’s SAE controversy

There will never be a n*gger at SAE
There will never be a n*gger at SAE
You can hang him from a tree
But he’ll never sign with me
There will never be a n*gger at SAE

Some ignorant frat guys from the University of Oklahoma sang this on a bus. It was filmed and shared online. Within 24 hours, the university severed ties with the fraternity and shut down their campus house. Within 36 hours, two students appearing to lead the song had been expelled.

They deserve it. The existence of this line of thinking, much less the existence of a welcoming audience for such a message, makes me angry.

They deserve it. But they cannot be expelled, because it runs counter to the purpose of institutions of higher education and foundational American beliefs about expression.

Boomer Sooner

The university’s swift and strong reaction has been almost universally applauded. OU’s president, David Boren, did not mince words as he condemned the racist speech. In a statement the morning after the video surfaced, Boren wrote, in part:

To those who have misused their free speech in such a reprehensible way, I have a message for you. You are disgraceful. You have violated all that we stand for. You should not have the privilege of calling yourselves “Sooners.” Real Sooners are not racist. Real Sooners are not bigots. Real Sooners believe in equal opportunity. Real Sooners treat all people with respect. Real Sooners love each other and take care of each other like family members.

“We don’t provide student services for bigots,” Boren added at a press conference the same morning.

Support for Boren and the University of Oklahoma grew, and by the following day, Boren announced the expulsion of the two students, declaring that they “had created a hostile learning environment for others.”

Roll Tide

I am a doctoral student at the University of Alabama, ironically enough the campus where Sigma Alpha Epsilon began. We’re all too familiar with racism in the Greek system. In 2013, the student newspaper exposed discriminatory rush practices designed to keep minority pledges out of certain sororities. The story outraged students, but the response by university administration was remarkably slow, and arguably lenient. No Greek organizations were disassociated from the university; no houses were closed. Rather, a second open bidding period was held with the implied understanding that those all-white sororities had better accept some minority pledges.

So, when OU responded as aggressively as they did, there was perhaps no student population in the country better positioned to appreciate it as the one at UA.

Indeed, my former students were enthusiastic in their support of Boren’s actions. Two of them – both public relations graduates – expressed the sentiment well. (They consented to including their Tweets in this post.)

The PR angle is excellent for Oklahoma. The Facebook posts carrying Boren’s statements, which, as of publishing have garnered some 125,000 likes and 40,000 shares, are filled with comments praising the university. More tangibly, there are a number of posts from parents of future college students expressing the degree of respect they have for the university… respect that may one day become a new enrollee:

I think it’s fair to say that a large majority of us think the song was ignorant and offensive. I also think I’m safe in assuming most of us are on board with Boren’s action-over-bureaucracy and idealized “zero tolerance for racism everywhere in our nation.” But there was one point upon which I couldn’t follow the masses.

I was not comfortable with the president of a public university punishing students who “misused their free speech.” Because that step seemed distinctly unconstitutional.

The First Amendment and Public Universities

People are bad at understanding the First Amendment. Donald Sterling, Dr. Laura, Don Imus – there are lots of examples of people who said stupid things and then claimed their constitutional rights were violated because they lost their jobs or because people yelled mean things back at them. Somewhere along the way, this cartoon saved us from having to laboriously explain the First Amendment every time one of these issues popped up.

It has popped up again in the past few days as supporters of OU’s disciplinary actions against SAE fend off rare constitutional criticism. After all, it’s hardly a popular position to appear to be defending privileged racists.

Problem is, it appears we’ve educated the Internet too well through this nifty cartoon that is just a tad too literal in the first frame. Yes, the First Amendment only protects us from government restrictions on expression. However, arresting you is not the only way in which the government can create restrictions.

A few things. First, as a public university, Oklahoma is a government institution, and President Boren is a government actor. Second, while there are some additional limitations to free speech in educational settings, this particular off-campus incident does not apply to any of them.

Eugene Volokh, UCLA law professor and creator of the Washington Post-incorporated blog The Volokh Conspiracy, explained it this way in 2007:

Public universities are bound by the First Amendment. Thus, both public university students and public university teachers are entitled to some protection from discipline, firing, and other retaliation for their speech. In some areas, this protection is pretty clear and pretty broad. In others, it’s relatively vague. […] Most clearly, students generally may not be expelled, suspended, or otherwise disciplined for what they say in student newspapers, at demonstrations, in out-of-class conversations, and the like. […]Generally speaking, student speech outside the classroom and outside academic assignments is protected from university punishment, even if it’s offensive, wrongheaded, racist, contemptuous, anti-government, or anti-administration. Of course, it’s not protected from university criticism. The university is itself free to publicly speak to condemn student statements that university officials find to be unsound or improper.

So, the SAE chapter can be punished by its national leadership – they are a private organization. And Boren can hit them with just about every damning line of his statements. He can say he hates what they stand for, preserving his PR bump, but he can’t kick them out based on speech alone.

That looks like what is happening. The very first line of Boren’s first statement is addressed “To those who have misused their free speech.” Such an acknowledgment of free speech cannot be followed by government punishment of that free speech. In expelling the students, Boren rests on the creation of “a hostile learning environment for others.” This is not entirely without merit, but the precedent lies in cases at K-12 schools in circumstances where the audience to such speech is captive at a mandatory curricular event.

It would have actually been more legally sound to ban Greek organizations and even expel students at Alabama, where there was not simply speech, but discriminatory conduct.

Further, the line about lynching in the song, while reprehensible, does not reach the threshold of a “true threat” lacking First Amendment protection. Those are typically directed at a specific target and have a likelihood of feasibly occurring. It’s the same reason Ted Nugent can go on stage and talk about shoving a machine gun down President Obama’s throat and not wind up in an undisclosed prison cell for the rest of his life.

The First Amendment and Really Dumb Speech

The First Amendment protects speech that nobody likes. Horrible stuff, like “God hates fags.” It’s why white supremacists can march down city streets. But it’s also why civil rights protestors can march in Selma, Ala. We the People aren’t stupid – allow differing ideas to compete on an even playing field without the government stacking the deck and watch us come around to embracing the good ideas and rejecting the bad. It can be slow and sloppy, but it gives us agency over our own ideal.

It’s an easy concept to teach in theory, but a difficult one to accept when the hate is staring you in the face. As the OU story was breaking, I publicly posed the First Amendment question, and one of my former media law students responded (again, shared here with permission).

I don’t blame him. I couldn’t fault anyone who feels the same way. Racism is real and ugly, and those who oppose it can (and should) shout it down. But carving out exceptions to free speech, as appealing as it is in the moment, isn’t the answer. SAE’s reputation is stained, and not just at Oklahoma. The students who outed themselves as racists now must live with that as they maneuver through a society that opposes their worldview. Those punishments are real and devastating – and none of them require government silencing of anyone.

In fact, that same community response creates hesitancy in those making constitutional arguments like this one. We are quick to come to the defense of the noble minority in the face of government oppression. But who wants to be the person defending racism? The Foundation for Individual Rights in Education (FIRE) published a brief statement after the frat house was shut down. Volokh published a high profile piece on the day of the expulsion. The OU student newspaper ran a nicely framed article. Yet a quick check of the blogs and social media accounts of many of my favorite First Amendment scholars and activists was met with silence. It’s not a comfortable place to be.

But it’s a necessary one. Students cannot be expelled from public universities for dumb, even hateful, words. We come to places of higher learning to be exposed to a wealth of ideas – for many of us the diversity of opinion is greater than any place we’ve previously been. Hopefully, we grow as a result of that environment. We embrace new ideas; we forsake ones that we believe no longer pass muster. But we express ourselves in the process. It’s essential. We’re not passive learners; we contribute to the conversation of our campus. The unpopular and the popular; the sound and the faulty. The First Amendment is to be blind to content so that we may open our eyes to all of the ideas around us. Nowhere does that philosophy seem more appropriate than at a university.

All of this (and I certainly didn’t expect “all of this” to be so much) to say, the government doesn’t get to be the arbiter of acceptable expression, and you don’t enlighten ignorance by kicking people out of the very institution best equipped to educate them.