A couple of days ago my good friend, Renwei Chung, the brilliant young writer for the esteemed website, Above the Law, asked me what I thought about the University of Oklahoma’s decision to expel two fraternity members who led a racist chant on a bus. My immediate response was that it was a tricky issue, and upon sober reflection I have come to the same conclusion.

Why? Well, to begin with, as several legal scholars have pointed out, the students’ words, however odious, were protected by the First Amendment’s guarantee of freedom of speech. These opinions were based on numerous court decisions holding that hateful, racist speech is protected by same.

Now, exceptions do exist. And official punishment could be legal if the students’ chant constituted a direct threat, leading a reasonable person to fear for his or her safety, or if it was likely to provoke an immediate violent response. Such was not the case here, however, as the chant occurred on a bus occupied by all-white fraternity members and their dates heading to a formal event, causing neither of the two aforementioned caveats to occur.

Later, though, videos of the chanted song emerged online, with the lyrics using racial slurs to boast that the fraternity would never accept an African-American member, and going so far as to refer to lynching with the words: “You can hang’em from a tree” according to newspaper accounts. The University President, Mr. David L. Boren, concluded that two students who had a leadership role in leading the racist and exclusionary chant should be expelled, as the subject chant created a hostile educational environment for others, which is a violation of Title VI of the Civil Rights Act of 1964, which forbids creation of a racially hostile environment in schools.

While I find the actions of the two students to be despicable, and I applaud the prompt action of President Boren to make it crystal clear that such behavior is odious to the University and reflects only the attitude of the two students (and some of their cohorts), and no one else, I nevertheless believe that the punishment doled out was illegal.

Why? First of all, there is no significant evidence that a racially hostile educational environment was created. The University of Oklahoma has many thousands of students, and the actions of a single fraternity involving say approximately 100 people chanting an admittedly obnoxious racist song on one occasion does not instantly create such a racially hostile educational environment.

Secondly, even if one could find that it did, many legal scholars who were interviewed in different news articles that I read were universal in pointing out that Title VI could not take precedence over First Amendment rights.

What I believe President Boren should have done is: (1) Condemn the students’ actions in the strongest possible language, which he did; (2) Have all of the student leadership groups at the University issue like statements of condemnation on behalf of the student body; and (3) Notify the subject students and all of their fraternity members that while their First Amendment Rights were in effect at the University, their future actions were going to be closely monitored to insure that as a result of same no student would have to fear for his or her safety, that no provocation of an immediate violent response was likely to occur, and that no racially hostile educational environment was created—and should the exercise of their First Amendment Rights meet either of the two exceptions, that expulsion would immediately follow, along with prosecution for violation of Title VI.

The great philosopher, Voltaire, taught that: while I may not agree with a single word you say, I will defend with my life your right to say it. We live in a free society, and in it one is free to be a bigot under the First Amendment, as long as the aforementioned exceptions to it are not in play. As a society our remedy is to condemn such bigotry, and if education of right and wrong cannot persuade bigots to eradicate their odious views, then to refuse to associate with them, socially or economically.

 

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