Excepting Expulsion of the SAE Students at the University of Oklahoma

Background

On March 10, 2015, two members of the University of Oklahoma chapter of the Sigma Alpha Epsilon fraternity were expelled after being caught on video on their way to a fraternity event leading the following chant, set to the tune of “If You’re Happy and You Know It:”

There will never be a n----r in SAE

There will never be a n----r in SAE

You can hang him from a tree

But he'll never sign with me

There will never be a n----r in SAE

Almost immediately following the students’ expulsion came a chorus of legal experts sounding Boren’s violation of the students’ First Amendment rights. Indeed, the case law seems to weigh in the students’ favor. In Healy v. James, 408 U.S. 169 (1972), the Supreme Court declared that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” Id., at 180, and upheld this notion a year later in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973). However, the Court designated a few forms of speech to be within a university’s power to discipline, one of which being that student activities “need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education,” Healy, at 189. In light of this exception, along with a contextual reading of the holding cases regarding university student speech, Healy and Papish, I propose, in spite of what appears to be an oppositional precedent, that the University of Oklahoma might be able to justify the expulsion of two of its students.

The Healy Exception

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.

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. However, this leaves 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

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 and willing to deviate from a hard-line application of Healy.

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

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 suppressed.

Yes, this revision makes the argument much better. I do not think it is sustainable myself, but you've now done a respectable job with it, warts and all.