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Excepting Expulsion of the SAE Students at the University of Oklahoma | | | In Healy, the Court noted that a college’s refusal to acknowledge a student group because of its speech-related activities could be justified if the group did not comply with “reasonable regulations with respect to the time, place and manner in which student groups conduct their speech-related activities,” Id., at 192-3. | |
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< | What counts as a reasonable campus regulation appears to be left fairly open in Healy, but it would be hard to imagine that a court would find the University of Oklahoma’s policies against abusive conduct and mental harassment unreasonable. What is left then is a determination of whether the time, place and manner was inappropriate for such speech. This is an issue addressed by Papish, in which a student was expelled for distributing a campus newspaper containing indecent speech, which included the phrase “M—f—“ and illustrations of a policeman raping the Statue of Liberty and the Goddess of Justice. The court noted that “in the absence of any disruption of campus order or interference with the rights of others, the sole issue was whether a state university could proscribe this form of expression,” Id., at 670. Indeed, the student’s speech posed no threat to the rights of others in Papish, and the Court ruled in her favor. However, I would argue that the speech of the SAE students is different—it does indeed interfere with the rights of others. It was performed at a student organization’s event, targeting a vulnerable class of people with the intent of exclusion, using abusive and harassing language. Further, it was performed as a chorus; it was rehearsed, indicating its pervasive nature and if, through discovery, the University of Oklahoma can show that the students it expelled participated in the promulgation of such abusive language, which interferes with the rights of black students by creating a culture of exclusion from a campus group, they may have a case for themselves that conforms to standards set by Healy and Papish. | >
> | What counts as a reasonable campus regulation appears to be left fairly open in Healy, but it would be hard to imagine that a court would find the University of Oklahoma’s policies against abusive conduct and mental harassment unreasonable. What is left then is a determination of whether the time, place and manner was inappropriate for such speech. This is an issue addressed by Papish, in which a student was expelled for distributing a campus newspaper containing indecent speech, which included the phrase “M—f—“ and illustrations of a policeman raping the Statue of Liberty and the Goddess of Justice. The court noted that “in the absence of any disruption of campus order or interference with the rights of others, the sole issue was whether a state university could proscribe this form of expression,” Id., at 670. Indeed, the student’s speech posed no threat to the rights of others in Papish, and the Court ruled in her favor. However, one could construe the speech of the SAE students differently. It was performed at a student organization’s event, targeting a vulnerable class of people with the intent of exclusion, using abusive and harassing language. Further, it was performed as a chorus; it was rehearsed, indicating its pervasive nature at the fraternity. If the University of Oklahoma can show that the students it expelled participated in the promulgation of such abusive language, they could try to make the case that such speech interferes with the rights of black students by creating a culture of exclusion from a campus group. What is left then, however, is the not insignificant hurdle of framing the promulgation of a hostile culture as an interference with students' rights. The university's best bet would probably be an equal protection argument if it can show that the expulsion of the students was done in the interest of protecting some fundamental right of black students--perhaps their equal access to public education. Such an argument would likely have to fall onto the ears of a highly sympathetic court, though when taking into context the precedent of Healy and Papish, such a thing might not seem completely out of reach. | | | A Contextual Approach | |
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< | In Healy, a state college denied official recognition of a campus group called Students for a Democratic Society (SDS); the president of the college refused acknowledgement of the organization based on his belief that they were affiliated with the National SDS and would thus participate in activities that were antithetical to school policies (the National SDS was a radical left student organization that led acts civil disobedience on some campuses). The Court noted that the administration failed to meet its burden of justifying its nonrecognition of the group because 1) the group denied affiliation with the National SDS and 2) even if there were an affiliation, the president could not deny recognition merely because its philosophies were “counter to the official policy of the college,” Id., at 187. | >
> | Justice Douglas, in his concurring opinion in Healy, laments the latent conservatism behind the school’s decision not to recognize the SDS, citing the then-recent effects of McCarthyism? , noting, “If we are to become an integrated, adult society, rather than a stubborn status quo…students and faculties should have communal interests in which each age learns from the other. Without ferment…a college…becomes a useless appendage to a society which traditionally has reflected the spirit of rebellion,” Id., at 197. Speech like that of the SAE students’ could hardly be thought to be the kind of speech he spoke of then, and a court taking this into consideration might be more sympathetic to the arguments of the university. | | | | |
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< | Chief Justice Burger recognized in his concurring opinion in Healy that “student organizations seeking…campus recognition must be willing to abide by valid rules of the institution,” and further, that he remanded because he was “troubled by the lack of a comprehensive procedural scheme that would inform students of…[how] to secure recognized standing,” Id., at 195. This notion is echoed in Justice Rehnquist’s dissenting opinion (in which Burger and Blackmun joined) in Papish, in which he distinguishes that case from Healy on the grounds that the latter case was one in which the university had “not afforded adequate notice and hearing of the action it proposed,” Id., at 673. Thus, more than one justice in Healy went out of his way to emphasize the procedural nature of that case and the deference to be given to the rules of the institution.
Justice Douglas, in his concurring opinion in Healy, laments the latent conservatism behind the school’s decision not to recognize the SDS, citing the then-recent effects of McCarthyism? , noting, “If we are to become an integrated, adult society, rather than a stubborn status quo…students and faculties should have communal interests in which each age learns from the other. Without ferment…a college…becomes a useless appendage to a society which traditionally has reflected the spirit of rebellion,” Id., at 197. Speech like that of the SAE students’ could hardly be thought to be the kind of speech he spoke of then. | >
> | It is also worth noting that there was a rather tenuous connection between the standards set by cases dealing with the imposition of criminal sanctions for speech and school sanctions before Healy, as Justice Rehnquist notes in his concurring opinion: “There can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other,” Id., at 203. Though this is merely a concurring opinion, such an argument has not gone unrecognized, and thus could perhaps be persuasive at court. | | | Conclusion | |
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< | We need not fear that upholding the University of Oklahoma’s decision to expel two students for their flagrantly abusive speech that targeted a protected class will result in a slippery slope downward into a university being able to discipline students for any speech it finds offensive. We can and should be able to delineate the forms of speech on campuses that interfere with the rights of others and seek to reel back social progress. Perhaps an elaboration of the standards for reasonable campus rules will be necessary, but I think it is in keeping with the spirit of Healy that the interest in maintaining a learning environment that is safe for everyone at public schools1 outweighs any interest in preserving the cruel and privileged speech of the few.
1. I think it is also important to keep in mind the rather tenuous connection between the standards set by cases dealing with the imposition of criminal sanctions for speech and school sanctions, as Justice Rehnquist notes in his concurring opinion to Healy: “There can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other,” Id., at 203.
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> | I think it is possible to protect free speech while disciplining discriminatory speech on school campuses. In fact, I think drawing a distinction between free speech and discriminatory speech on school campuses might even serve the interests of the former, for indeed, our language itself is structurally unfair. It arms those in power with words that by their utterance can inflame, silence and intimidate. By disallowing the use of such words in the presence of developing minds, we can allow those students who are most at risk of forever being hardened and silenced by such speech to think and speak as freely as those who are determined to keep them pressed under their heels. |
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