The New Republic also has a piece on whether it’s constitutional for the University of Oklahoma to expel the two frat boys who led the racist chant on the bus. Of course it does; the New Republic is the National Review for people who think they’re on the left.
[A]s UCLA School of Law professor Eugene Volokh noted shortly before Boren’s announcement, a public university student has a right to express himself without being expelled—even if that expression is a virulent, racist chant. “First, racist speech is constitutionally protected, just as is expression of other contemptible ideas,” Volokh wrote. “And universities may not discipline students based on their speech.”
Public universities, that is.
Yes, and note that that’s not what Volokh noted; he left out the “public” part.
In 1972, the Supreme Court made clear that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” and a year later the court reaffirmed that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of conventions of decency.” That case, Papish v. University of Missouri Curators, involved a set of facts relevant to the Oklahoma case: Expulsion of a graduate journalism student who was sanctioned for handing out a newspaper “containing indecent forms of speech.”
Yes but “indecent” isn’t the issue. The problem with racism and with racist bullying is not that it’s “indecent” but that it’s harmful. That doesn’t automatically mean the First Amendment doesn’t apply, obviously, but it clutters up the issue to imply it has to do with what’s “indecent” (or “offensive,” which is a completely useless word for trying to think clearly about this subject).
Noting that a public university can reasonably regulate “the time, place, and manner of speech and its dissemination,” the court ultimately ruled that a student cannot be “expelled because of the disapproved content of the newspaper,” and ordered the student reinstated.
Of course, there are exceptions to this rule: when the offensive speech represents a “true threat” to the listener, or if the words had somehow been used to pick a fight or to incite others to violence. None of that seems to be the case here, as the chant appears to have been sung while on a school trip and not directed to a particular audience.
And therefore it was sealed off in an airtight bubble where it would have had no effect whatsoever on how the members of that fraternity interacted with non-white people at the university. And I’m Marie of Romania.
Why do people have to be so simple-minded about this stuff? Why do they have to pretend that if it’s not “I’m going to lynch you!!” screamed directly into the face of one person, it’s nothing at all?
The school, for its part, seems to have anchored the expulsion on the notion that the students created a “hostile educational environment” for everyone else with their “racist and exclusionary chant.” But where does such hostility and exclusion begin and end?
Gosh, I don’t know, therefore let’s throw up our hands and just let god take care of it.
Government censorship is harmful. Unconstitutionally expelling students for speech is harmful. Drunken chants on a bus aren’t harmful.
Bigotry is harmful. Bigoted drunken chants are no exception. Bigotry uses speech to hurt, not to express a train of reasoning. It’s weaponized speech, and as such it stops free speech. It is the antithesis of free speech. The clearest example is not in racist speech but in gendered mobs aimed at women on the web, which is nastily effective at both hurting and silencing women while expressing no thoughts at all. It’s just plain old hatred and plain old hate speech.
This concept seems to be difficult mainly for some white males who are almost never the targets of weaponized speech.
To give an example of ideas that could be considered racist that are not weaponized, researchers (this was many years ago) wanted to study whether blacks were more violent than whites. They almost got shut down for racism, but ultimately managed to do an acceptable controlled study. (The short answer is no. Blacks as a group were actually slightly less violent than whites matched for age, gender, and income.) The difference was on the order of 13% vs 15% or something like that.
Of course, the great gaping chasm of difference was between males and females. 85% of violent attacks were committed by men, a little bit over 5% were not-directly-provoked attacks by women, and 10% were violence by women in response to attacks by men. I believe the numbers are still very similar.
And the fact that this vast difference was not being studied, while the piddling non-difference between races was studied woke up the sociology community to the fact that, yes, it really was a racist question. But my point is that you do have to ask the obnoxious question to see the answer. That kind of speech is and should be protected. There is an idea behind it. That is different from abuse and hate speech.
If we — meaning people like I’m-all-right-Jack Volokh — don’t wake up to the difference between abuse and speech, there’s not going to be any free speech for anyone except the Volokhs. Maybe that’s why he’s okay with it.
this may be a stupid idea but I was thinking this could be a teachable moment. One thing they could do is have African American students talk about how these chants affect them and why they are harmful. How throughout history, racist language keeps other people down. It is harder to disparage someone when you get to know them. I would suggest the racists students give back to the African American community in some way. The ultimate punishment is they would have to write a 20 page essay. I always found writing essays to be torture. There may some people that too rigid to change their views
Don’t universities (like most employers) have contracts barring unsuitable behavior which harms the organization?
No one would suffer physical injury if a gang of drunken students crashed a university’s banquet for political friends and big-donor alumni to dance naked on the tables – but courts would prob’ly uphold the ensuing expulsions 999 times out of a thousand. Oklahoma courts even more so.
Yes, I think they do. I think Volokh made his case by leaving out a lot of details.
I confess that I was surprised that they went ahead and expelled those students. Mostly b/c other universities of my acquaintance never managed to analyze things in a non-stupid way. So went on and on about the racist, sexist students’ rights, and the location exact geographic location of the racist events. I think the key is that the university actually took action that protected (more or less) the victims rather than the perpetrators. If they want to the frat boys and their families and their frat brothers can make a teachable moment out of it. And not bother the African American students by making them recipients of insincere talk or badly written essays.
If there is an exception here, it will pretty much have to be under the Tinker v. Des Moines regime (i.e. school can ban speech that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”) The 10th circuit has suggested that this high school based standard applies to public universities (Axson-Flynn v. Johnson, 10th Cir.) but has not considered off-campus speech by college students.
It’s pretty clear that the use of hateful speech and slurs isn’t enough because the Supreme Court has held plenty of such speech to be protected:
Cross burning (R.AV v. St. Paul) [unless it’s a targeted threat – Virginia v. Black]
“God hates f***” (Snyder v Phelps)
“The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” (Brandenburg v. Ohio)
What is especially important in my comment is that African American voices should be heard. The university needs to teach students that sometimes you have to stop and listen. It may only make an impression on some students but that is better than none.
Correct.
Correct.
Wrong. Very wrong.