SAE's speech may be protected by First Amendment

[amigocabal]

SAE's speech may be protected by First Amendment

OU President Boren stood behind a podium in Holmberg Hall on Monday morning and left no doubt about his stance on the actions of the Sigma Alpha Epsilon fraternity members who were caught on video participating in a racist chant that sparked protests across campus.

“Would I be happy if they left the university as students and were no longer our students? You betcha,” Boren said. “I’d be happy. We don’t have any room for racists and bigots at this university. I’d be glad if they left.”

At this point the OU chapter of Sigma Alpha Epsilon no longer exists. All of its members have been suspended from the fraternity, Boren has ordered the house to be closed, and everyone living inside must be out by midnight on Tuesday.

For many, that is not enough. Calls for expulsion abounded across the campus on Monday, and Boren explained in his press conference that the university’s legal team is working to find a way to punish individuals in a way that is constitutionally sound.

Unless their investigation yields something more than the image of fraternity brothers spewing bigotry on a charter bus, though, there is a good chance they won’t find it.

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[Elheru Aran]

...Are you trying to argue in favour of these racist fuckwits or something?

[amigocabal]

...Are you trying to argue in favour of these racist fuckwits or something?

No. The SAE National Headquarters had every prerogative to close the OU chapter. The First Amendment does not constrain the actions of SAE HQ. They have near limitless power to police the conduct of its members.

OU, by contrast, is an agency of the state government, which is bound by the First Amendment. It can not legally punish students solely based upon content speech absent satisfying strict scrutiny. See National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), Brandenburg v. Ohio, 395 U.S. 444 (1969) and Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993) Especially relevant is that the students, in their capaicty as such, do not represent the university. This is in sharp contrast with public employees whose speech in such capacity can be imputed onto the state. See Garcetti v. Ceballos, 547 U.S. 410 (2006).

[The Romulan Republic]

...Are you trying to argue in favour of these racist fuckwits or something?

Are you trying to argue that anyone who supports or acknowledges the First Amendment supports racism?

[Elheru Aran]

...Are you trying to argue in favour of these racist fuckwits or something?

Are you trying to argue that anyone who supports or acknowledges the First Amendment supports racism?

No. The way the OP was written could be interpreted as saying "the university can't kick these students out for this shit". I think they should be able to, personally-- I generally support the First Amendment, but it's got its drawbacks, and having to condone racist speech is one of those.

And the OP is not all that great either. It doesn't give the full article nor commentary. For example, it doesn't note that the frat closed its chapter at that school, which would have helped my first impression.

[Grumman]

At this point the OU chapter of Sigma Alpha Epsilon no longer exists. All of its members have been suspended from the fraternity, Boren has ordered the house to be closed, and everyone living inside must be out by midnight on Tuesday.

Isn't Boren's demand a violation of renter protection laws? Can he really kick out an entire apartment building on two days notice because some of them said something offensive?

[Borgholio]

Good question. Does a frat house count as a standard apartment building?

[Alyrium Denryle]

At this point the OU chapter of Sigma Alpha Epsilon no longer exists. All of its members have been suspended from the fraternity, Boren has ordered the house to be closed, and everyone living inside must be out by midnight on Tuesday.

Isn't Boren's demand a violation of renter protection laws? Can he really kick out an entire apartment building on two days notice because some of them said something offensive?

This is Oklahoma. I would be surprised if there were renter protection laws worth mentioning. If its very similar sister-state texas is any indication.

[Elheru Aran]

If the SAE chapter house is on property owned by OU, OU can do whatever it wants for the most part with the property. It all depends on what terms the lot is rented under. If it's something along the lines of "don't do dumb shit or we kick you out because you make us look bad", it could fly.

[Joun_Lord]

While what these frat-douches spewed from their beer chugging holes is reprehensible, it should be their right to say that stupid shit.

Unless they are actually threatening someone or try to incite violence, it shouldn't be a crime. Even them speaking it in public might have a leg to stand on tarnishing the image of the institution they are part of but from what I can tell this vid was from a relatively private event.

I feel massively uncomfortable with people being attacked a criminals for words, even stupidly offensive one, they spoke of in private, being kicked out of school for holding a viewpoint or opinion that is not in line with the norm. Very easily the opposite could happen at some deep south racist ass school were kids are kicked out for advocating racial harmony or gay rights. In both cases its wrong.

It would be akin to me being fired for saying something racist here (which wouldn't be out of character, I'm very racist, I hate NASCAR, Formula One, IndyCar, even go-cart racing leagues).

Like the stup bastards of the Westboro Baptist Church spewing their hatred and vitriol. Its horrifically offensive, upsetting, and for anyone who is gay or with a dead soldier relative its personally hurtful but still its their right to say that shit in public or in private.

[amigocabal]

While what these frat-douches spewed from their beer chugging holes is reprehensible, it should be their right to say that stupid shit.

Unless they are actually threatening someone or try to incite violence, it shouldn't be a crime. Even them speaking it in public might have a leg to stand on tarnishing the image of the institution they are part of but from what I can tell this vid was from a relatively private event.

I feel massively uncomfortable with people being attacked a criminals for words, even stupidly offensive one, they spoke of in private, being kicked out of school for holding a viewpoint or opinion that is not in line with the norm. Very easily the opposite could happen at some deep south racist ass school were kids are kicked out for advocating racial harmony or gay rights. In both cases its wrong.

It would be akin to me being fired for saying something racist here (which wouldn't be out of character, I'm very racist, I hate NASCAR, Formula One, IndyCar, even go-cart racing leagues).

Like the stup bastards of the Westboro Baptist Church spewing their hatred and vitriol. Its horrifically offensive, upsetting, and for anyone who is gay or with a dead soldier relative its personally hurtful but still its their right to say that shit in public or in private.

The biggest problem is that the school, in its actions, may very well have turned a bunch of racist nithings into martyrs for freedom of speech.

The frat HQ acted (and as a private organization, has near limitless leeway as to how it can police its members) . Unless there is something more, such as an act of overt racial discrimination, these expulsions should be reversed.

[White Haven]

It would be akin to me being fired for saying something racist here (which wouldn't be out of character, I'm very racist, I hate NASCAR, Formula One, IndyCar, even go-cart racing leagues).

Unless you happen to work for the US government in some capacity, this is a red herring. If I, as a private employer, fire your ass for something you said, that's my prerogative. The First Amendment doesn't protect you from the consequences of exercising free speech, it simply ensures that the government itself isn't the one crushing you for it. Those consequences need to be in line with other existing laws, which is why they would also attempt to protect you from being shivved in the kidney for your speech.

People get fired for flexing their rights to free speech all the time. My boss is a useless fucking cunt half the time. What-what, I'm unemployed now? That's why the discussion about rental protection laws is the most important thing that's been brought up on the subject so far; the only laws that bear on the consequences being leveled against these tools are any that might make the consequences illegal, not anything bearing on the initial act.

[amigocabal]

I feel massively uncomfortable with people being attacked a criminals for words, even stupidly offensive one, they spoke of in private, being kicked out of school for holding a viewpoint or opinion that is not in line with the norm. Very easily the opposite could happen at some deep south racist ass school were kids are kicked out for advocating racial harmony or gay rights. In both cases its wrong.

One of the early free speech cases against public universities dealt with a group advocating for gay rights. See Gay Alliance v. Matthews, 544 F.2d 162 (4th Cir. 1976)

A UCLA law professor provided a quick legal analysis.

http://www.washingtonpost.com/news/volo ... st-speech/

[Alyrium Denryle]

Ok. Here is the deal. Campus groups and organizations are basically chartered organizations. They receive university funding on the understanding that they will operate under a particular set of rules (like no racial discrimination or organization of hate-rallies etc).

On-campus fraternities basically have their own residence halls (which could be actual houses, or could be dorm style, depending on the campus) which they control, but that the university owns.

When a campus group Fucks Up, the university can sever its institutional ties. It can withhold funding and revoke the right of that group to utilize its trademarks (no more calling yourselves the Arizona State University Crotch Badgers) but the group is not disbanded per se. It can still meet on campus, its members dont face other sanctions etc. When a Fraternity is involved, they can be expelled from the fraternity houses pursuant to renter protection laws. Maybe. Renter protection laws may not even apply to them at all, because they dont technically pay rent or sign formal lease agreements, but operate under different sets of rules entirely.

As for the Expulsions, it looks like the university is trying to make an end-run around the 1st amendment by utilizing the Racial Harassment provisions of Title VI. Which may or may not actually work.

[Esquire]

And if it does, good. If we can figure out a way to disincentivize this sort of nonsense while keeping First Amendment protections for productive speech, that'd be wonderful.

[Joun_Lord]

It would be akin to me being fired for saying something racist here (which wouldn't be out of character, I'm very racist, I hate NASCAR, Formula One, IndyCar, even go-cart racing leagues).

Unless you happen to work for the US government in some capacity, this is a red herring. If I, as a private employer, fire your ass for something you said, that's my prerogative.

I'm sure many will disagree and with good reasons but personally I think that thats kinda bullshit. To be fired for something you say on your own time, on your own dime or local equivalent is not kewl. Like schools punishing kids for what they do on their own time, like the kids suspended for having an airshit fight before skool or the kid expelled for eating candy they mistook for drugs infront of the school laptop at home when they were spying.

Ones private time should be separate from their work/school time.

Beyond that, something that affects ones jobs little should not be fireable offense especially when its literally dirty words. Most everyone except probably many of my neighbors could agree that what these jock straps said is bad. Well what about saying you are a Democrat or Republican or heaven forbid a Libertardian? What about saying you are pro or anti abortion, pro or anti guns, pro or anti Ben Affleck as Batman? All and more are things an employer may find offensive but I think most could agree that none should be fireable offenses.

Now you can make the argument that there is a difference between saying those things and saying shit like what the douches on the bus....sard ramjet said. What the frat brats said was hate speech. You would be right, damn bro that was good argument, but also wrong, damn bro that was a shit argument bro.

There is a difference but also they are both offensive to some people. Nobody would give a shit about some lame brains with far too little brains and far too much tech saying the n-word if it didn't have such a horrible history for African Americans in Murica. But people find it offensive. Thats usually what triggers these blowbacks is people finding it offensive.

We find it offensive people saying shit like these idiots on the coach or people denying people based on shit like skin color, sexual orientation, or dangly parts. Other people find people being offended offensive and will say its persecuting them (somehow), or someone being black is offensive, or someone being gay or a woman or Muslim or a damn dirty ape (when will our simian cousins get equal protection under the law, apes are people too, well like 96% people) is offensive.

We have protections in place to try to prevent that, mostly, but shit still happens especially when we allow people to be discriminated against for merely being considered offensive. But again the problem is what some people consider offensive.

I'd prefer not to be fired for saying I voted for Obama or I might own a gun or I'm an atheist. All are things people find offensive just as much as people found the jock douches chanting the n-word no one should (negativity according to some seminar on positivity in the work place I had a few years back). If some racist assclown gets to keep his job in the process, I guess thats a small price to pay for protection of both free speech and from discrimination. Though I understand wholeheartedly and sympathize with people who may not feel that, I don't agree with them.

Of course the most discrimination I've felt is by Christians and others for my faith (or rather lack of) and the occasional person looking down on me for where I was spawned, without getting into the game of whos more oppressed I am not as oppressed as some and therefore haven't experienced such vile attacks as to make words quite hurtful and may not be the best judge of whats offensive and whats oppression and the limits of free speech.

I dunno.

[Alyrium Denryle]

I'm sure many will disagree and with good reasons but personally I think that thats kinda bullshit. To be fired for something you say on your own time, on your own dime or local equivalent is not kewl.

Freedom of Speech. Meet your lesser known little 1st amendment cousin, Freedom of Association.

If you say or do something that makes me, your hypothetical employer, think you are an asshole (barring certain bounds as prescribed by law), I dont have to hang out with you anymore. Or give you my money. This is how boycotts work too. If you are a douchebag, I dont have to give you my money. I dont have to be around you. I dont have to let you take up my office space.

Like schools punishing kids for what they do on their own time, like the kids suspended for having an airshit fight before skool

School. Can you read that? SCHOOL

That said, schools are legally responsible for the behavior and well-being of children from the time they leave their parents custody in the morning, to the time they get home and presumably return to their parents custody in the afternoon. It may have been stupid to suspend kids over an airsoft fight (though really, those things can be dangerous), but it is well within the legal rights of the school.

or the kid expelled for eating candy they mistook for drugs infront of the school laptop at home when they were spying.

Have a reference for that? I remember the spying (which IS bullshit), but it seems a trivial matter to just explain that the kid was eating skittles instead of ecstasy.

[Grumman]

I'm sure many will disagree and with good reasons but personally I think that thats kinda bullshit. To be fired for something you say on your own time, on your own dime or local equivalent is not kewl.

The worst part is that I know of one person (a community manager for Turtle Rock Studios, IIRC) who was fired for saying what you just said there. It's bad enough that people do this without also suppressing people's ability to say it's not a good thing.

[Joun_Lord]

I'm sure many will disagree and with good reasons but personally I think that thats kinda bullshit. To be fired for something you say on your own time, on your own dime or local equivalent is not kewl.

Freedom of Speech. Meet your lesser known little 1st amendment cousin, Freedom of Association.

If you say or do something that makes me, your hypothetical employer, think you are an asshole (barring certain bounds as prescribed by law), I dont have to hang out with you anymore. Or give you my money. This is how boycotts work too. If you are a douchebag, I dont have to give you my money. I dont have to be around you. I dont have to let you take up my office space.

I think, which my doctor said I should stop doing so I may be wrong, that atleast in many US states an employer can't just say "You suck!" and fire your ass for no reason but has to provide a good actionable reason to say GTFO of my office. But still I get your point.

The reverse of the situation as you described is what I'm rather ineptly trying to get at as a consequence of being able to fire people for non-work conduct. The employer can be the douchebag who can stop hanging out with you and giving you money just for being a Trekkie, black, gay, or a PC Master Race Gamer (console wars are serious bidness these days). Now I doubt too many people would want to hang out and receive bits of paper that we have arbitrarily assigned value to from some massive cunt who hates them but in this economy with its limited amount of jobs beggers can't exactly be choosers or may wind up as actual beggars.

Like schools punishing kids for what they do on their own time, like the kids suspended for having an airshit fight before skool

School. Can you read that? SCHOOL

That said, schools are legally responsible for the behavior and well-being of children from the time they leave their parents custody in the morning, to the time they get home and presumably return to their parents custody in the afternoon. It may have been stupid to suspend kids over an airsoft fight (though really, those things can be dangerous), but it is well within the legal rights of the school.

The kiddies weren't under the schools care. They were apparently in their own yard . Plus there was another time some other chilluns were expended for posting airsoft guns on their Facebewb account, proving once again Facebook is EVILLL!! !! ! !!! .

or the kid expelled for eating candy they mistook for drugs infront of the school laptop at home when they were spying.

Have a reference for that? I remember the spying (which IS bullshit), but it seems a trivial matter to just explain that the kid was eating skittles instead of ecstasy.

Wiki link here . Seriously creepy case with some seriously creepy as seriously stupid people involved I'm super cereal. Also makes me a bit jealous, we barely even got to take home freaking calculators from school and now these modern iPad babies children get laptops and tablets to take home from school. Alot of the computers in school were seriously old too. I remember in elementary school alot of the classroom computers were old Apple computers with monochrome displays that nobody knew how to work (it was a country school that crammed in K though 8, so affording fancy new computers probably weren't that easy).

[amigocabal]

Ok. Here is the deal. Campus groups and organizations are basically chartered organizations. They receive university funding on the understanding that they will operate under a particular set of rules (like no racial discrimination or organization of hate-rallies etc).

On-campus fraternities basically have their own residence halls (which could be actual houses, or could be dorm style, depending on the campus) which they control, but that the university owns.

When a campus group Fucks Up, the university can sever its institutional ties. It can withhold funding and revoke the right of that group to utilize its trademarks (no more calling yourselves the Arizona State University Crotch Badgers) but the group is not disbanded per se. It can still meet on campus, its members dont face other sanctions etc. When a Fraternity is involved, they can be expelled from the fraternity houses pursuant to renter protection laws. Maybe. Renter protection laws may not even apply to them at all, because they dont technically pay rent or sign formal lease agreements, but operate under different sets of rules entirely.

As for the Expulsions, it looks like the university is trying to make an end-run around the 1st amendment by utilizing the Racial Harassment provisions of Title VI. Which may or may not actually work.

Here is the issue with the racial harassment argument. The school only found out about it when tyhey say a video some time after the fact. And his expulsion letter does not even claim they harassed any particular persons. Instead, there is some mumbo jumbo about a hostile educational environment (belied by the fact that no one on the bus even complained, and that the chant was limited to the bus).

I am aware that universities can restrict substantial;ly disruptive speech. But it seems that student speech could only be restricted in those grounds if it were likely to produce imminent disruption. See Brandenburg, 395 U.S. at 447

[Alyrium Denryle]

Here is the issue with the racial harassment argument. The school only found out about it when tyhey say a video some time after the fact. And his expulsion letter does not even claim they harassed any particular persons. Instead, there is some mumbo jumbo about a hostile educational environment (belied by the fact that no one on the bus even complained, and that the chant was limited to the bus).

You might want to look at the operational legal definition of harassment when it comes to employment and education. I will give you a hint. It contains words like "Hostile educational environment"

Besides, do you really think this fraternity was not engaging in race discrimination? Or that a bit of digging would not have revealed other offenses by the individuals so expelled? Pretty sure both are true, and if the students do file suit, I am pretty sure the university will beat them with the results of that digging.

[amigocabal]

Here is the issue with the racial harassment argument. The school only found out about it when tyhey say a video some time after the fact. And his expulsion letter does not even claim they harassed any particular persons. Instead, there is some mumbo jumbo about a hostile educational environment (belied by the fact that no one on the bus even complained, and that the chant was limited to the bus).

You might want to look at the operational legal definition of harassment when it comes to employment and education. I will give you a hint. It contains words like "Hostile educational environment"

A hostile environment is" sufficiently serious to interfere with or limit a
student’s ability to participate in or benefit from the services, activities, or opportunities offered by a school" A looser definition is unlikely, as it would raise serious First Amendment questions. that said, a bunch of racist, boorish comments on a charter bus would not remotely approach that.

(I note that neither the words "hostile" nor "environment" appear in the text of title VI, which deals with racial discrimination by public universities . Maybe that phrase is used in Oklahoma's own civil rights laws.)

Besides, do you really think this fraternity was not engaging in race discrimination? Or that a bit of digging would not have revealed other offenses by the individuals so expelled? Pretty sure both are true, and if the students do file suit, I am pretty sure the university will beat them with the results of that digging.

the university did not claim any overt acts of discrimination. The letter only claims that the students created a hostile environment without specifying how it could do so, especially since few people in the school were even aware of the remarks until this week.

[Alyrium Denryle]

the university did not claim any overt acts of discrimination. The letter only claims that the students created a hostile environment without specifying how it could do so, especially since few people in the school were even aware of the remarks until this week.

What gets reported in the news and what happens during the Student Conduct Hearing are two different things. Seriously, a university cannot just expel a student without due process. Even criminal offenses require a hearing. Those hearings are confidential (protected by FERPA if I recall), and what the university can say in public about them legally is extremely limited.

(I note that neither the words "hostile" nor "environment" appear in the text of title VI, which deals with racial discrimination by public universities . Maybe that phrase is used in Oklahoma's own civil rights laws.)

There is a reason I specified Operational legal definitions.

The state, federal regulation, as well as case law (the US legal system is Common Law, there is a lot of shit not spelled out in statutes that is instead contained without mountains of case law). The US legal code and the regulations derived from that code within the DOE are different things. I would need to find and dive into the vast body of DOE regs. I am going off memory here. I uh... was in a university fraternity (subtype: all gay, non-douche, Yes they exist) and got educated in it from that end (as I mentioned, my fraternity was fairly progressive. Non-discrimination And You was a pledge course) and spent 5 years as a graduate TA, which means annual training courses on discrimination and harassment.

[Alferd Packer]

I imagine that the expulsion(s) is a money talks, bullshit walks situation. In this case, the university's president is probably under extreme pressure from donor groups to do something. If the university gets sued later, so what? The money they lose in the legal defense and ensuing settlement is probably way less than the money they would lose from wealthy benefactors pulling funding.

Having said, that, I haven't found anything in the news suggesting that that is the case, other than a few articles about extant funding sources possibly drying up for reasons unrelated to this. About the only thing that makes me suspicious is the football team canceling their practice in protest. Any hint of trouble with that revenue stream would have the university shitting bricks.

[Patroklos]

What gets reported in the news and what happens during the Student Conduct Hearing are two different things. Seriously, a university cannot just expel a student without due process. Even criminal offenses require a hearing. Those hearings are confidential (protected by FERPA if I recall), and what the university can say in public about them legally is extremely limited.

I'm sorry what?! They sure as shit can, and do. Have you been blind to arbitrary expulsion of students over sexual assault/rape accusations and the acute problems this raises with due process as highlighted by university law departments nationwide (specifically Harvard). Its been all over this board.