The decision by University of Oklahoma president David Boren to expel, without a prior hearing, two students for leading a racist chant raises serious constitutional concerns about violating the students' First Amendment rights, legal experts say.
A video of the incident, which was posted online Sunday, shows several people on a bus participating in a chant in which they used a racial slur, referred to lynching and said black students would never be admitted to OU's chapter of their fraternity, Sigma Alpha Epsilon.
Boren acted swiftly after the video surfaced, severing ties with the fraternity and ordering its house shuttered Monday and announcing the expulsions Tuesday. The two students, whose identities were withheld, were “leaders in the singing of a racist chant,” and were expelled for creating a "hostile learning environment for others," Boren said in a statement issued Tuesday on Twitter.
But legal experts questioned the move to expel the students, on constitutional grounds and because they did not receive a hearing before they were expelled.
"The First Amendment to the United States Constitution protects speech no matter how offensive its content," said Jamel Oeser-Sweat, a New York-based civil liberties attorney.
Those protections include the right to express repugnant views, according to Robert Shibley, executive director at Foundation for Individual Rights in Education (FIRE). "The laws don't protect us from feeling uncomfortable,” he said.
While there's "no question" that the chant captured on video is "repulsive and shameful," said David M. Shapiro, a clinical assistant professor of law at Northwestern University School of Law, the First Amendment applies to even the worst kinds of speech. "It has been held to protect cross burnings and the picketing of funerals of Iraq war veterans, for example. The Constitution protects such speech because allowing the government to decide what can and cannot be said opens up a Pandora's box of what might be censored."
The laws don't protect us from feeling uncomfortable.
Executive director at FIRE
Boren’s use of the words “hostile learning environment” to describe the racist chants may be an attempt to override constitutional protections, according to Gene Policinski, the chief operating officer of the Newseum Institute and and senior vice president at the First Amendment Center.
The Supreme Court has carved out threatening speech as an exception to the First Amendment's guarantee of free speech.
In the news release announcing the expulsion, Boren said that the chant created a "hostile learning environment" for students because the video was distributed on social media and therefore affected the entire university. “I have emphasized that there is zero tolerance for this kind of threatening racist behavior at the University of Oklahoma," Boren said in the statement.
The University of Oklahoma did not respond to a request from Al Jazeera for comment about the First Amendment issues raised by the case.
The Supreme Court has so far not provided lower courts with a clear formula for determining when speech constitutes a threat.
Former Justice Sandra Day O' Connor attempted to offer some guidance in Virginia v. Black, a 2003 case that held that not all cross burnings were done with an intent to intimidate. In her opinion, O'Connor wrote that a “true threat” is "where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”
A case pending before the Supreme Court, Elonis v. the United States, which concerns threatening rap lyrics that were posted to Facebook, may further clarify what level of intent is necessary for a “true threat” to exist.
In the OU incident, one part of the chant, "You can hang him from a tree," is a reference to lynching, and could be interpreted as threatening speech, Shapiro notes.
Nearly 4,000 black people in 12 Southern states were killed in "racial terror lynchings" between 1877 and 1950, according to the Alabama-based Equal Justice Initiative.
"But in the context of people sitting on a bus, it will be difficult to interpret the statement as a direct threat on someone's safety,” Shapiro said. “The students don’t appear as if they’re about to engage in violence, and no one was holding any weapons. There did not appear to be anyone present who might be the object of harm."
The 'PWI' problem
Constitutional law experts say that even if OU can establish valid grounds for expelling the students, it may be harder to legally justify why it failed to provide the students with a hearing.
“Due process and the First Amendment are two separate considerations," said Shibley.
In the letter sent to the two students notifying them of their expulsion, Boren gave the students until the end of this week to request a hearing.
But a public university cannot expel students before providing them with a hearing, absent extraordinary circumstances that affect safety, according to Shibley. “The postponement of hearings are limited to situations when someone poses an immediate threat to himself or others,” he said. “That doesn't seem to be the case here.”
For some student observers, the media focus on the expulsions distracts from a larger pattern of discrimination at predominantly white campuses. African-Americans comprise about 5 percent of the campus population at the University of Oklahoma.
"You can’t expel two students for being racist without addressing the system that is enabling them," said Makiah Green, a graduate student at the University of Southern California. Green created a Twitter profile @myPWI, to provide a space for minorities at predominantly white institutions — PWI — to share their experiences.
“Universities have a unique role because they have the power to educate people before they join the workforce,” Green said. “A lot can be done at the institutional level.” For example, she said, many universities “are admitting minorities at an abysmal rate," and should do more to address that. "Many of these schools also fail to include courses on racism and how that manifests in society today. Not to mention the micro-aggressions faced by students of color every day."
She added, "Something more needs to be done than just simply pulling out the weeds.”
With the Associated Press