Following a leaked video of University of Oklahoma students partaking a racist chant advocating for the exclusion of African Americans from their fraternity, University President, David Boren, expelled two such students who were members of the Sigma Alpha Epsilon (SAE) fraternity. This essay will argue that, even though the chant was clearly racist, this response to the incident is unconstitutional and detrimental to the free-speech environment on college campuses across the nation.
In March 2015, University of Oklahoma (OU) President, David Boren, expelled two students who were members of the Sigma Alpha Epsilon (SAE) fraternity for partaking in a chant that advocated the exclusion of African Americans from SAE. While I acknowledge that the chant was racist, I assert that the expulsion of the two students was unconstitutional under the Free Speech Clause of the First Amendment and counterproductive to the pedagogical mission of public universities in America. First, the University of Oklahoma is a public institution of higher education and therefore must guarantee its students the rights enumerated in the U.S. Constitution; yet, President Boren impinged on those rights by immediately expelling the students based on the content of their speech. Second, regulating such discourse undermines the goal of colleges which is to add thoughts to the marketplace of ideas and expelling students who do just that throws away ideas that foster academic growth. Moreover, my work adds to discourse on the topic of hate speech on public university campuses by conveying that punishment of speech with expulsion causes a fear of educational deprivation amongst college students. This harms them academically and physically given their inability to freely express their opinions on matters of race, politics, religion, gender, and sexual orientation. I also illustrate that it is important to preserve free speech on college campuses as well as to admonish public colleges undermining democracy by impinging on their students’ constitutionally-guaranteed rights in this era of robust debate about campus hate speech.
Hate speech can easily be defined, by University of Alabama Law Professors Richard Delgado and Jean Stefancic, in their work entitled Understanding Words That Wound, as “direct and indirect, veiled or overt, single or repeated, back by authority and power or not, [or] accompanied by threat of violence or not” speech that “can be delivered orally, in writing, or on the Internet” while also considering that it can target people based on their “race, sex, sexual orientation, or national origin” and may be directed “against one individual… a small group… [or] a group in general.” With this definition in mind, we look at the particular case at OU in which, two students and SAE members, while traveling on a bus, were unknowingly videotaped leading a racist chant that several newspapers, including The Washington Post, have determined the lyrics to be “There will never be a n****r at SAE. There will never be a n****r at SAE. You can hang him from a tree. But he’ll never sign with me. There will never be a n****r at SAE.” Following the release of the video onto the internet, it was evident to President Boren that the students violated the abusive conduct provision of OU’s Student Rights and Responsibilities Code which proscribes a student from “create[ing] an environment that a reasonable person would find intimidating, harassing or humiliating.” Boren’s rationale for the expulsion was, based on an article written by University of California, Los Angeles School of Law Professor Eugene Volokh, that the two students each had a “leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” I argue that Boren’s application of this abusive conduct provision was unconstitutional since public universities are entitled to guaranteeing constitutionally enumerated rights to their student body. I also argue that it was counterproductive because, according to American constitutional law author Anthony Lewis, in his book Freedom for the Thought That We Hate, “allowing hateful speech … makes the rest of us aware of terrible beliefs and strengthens our resolve to combat them” and hate speech adds to robust political debate and its value should be determined by the individual(s) being exposed to it.
There are two bases to proscribe speech—the words that are uttered (content-based) and the time, place, and manner of the utterance of those words (content-neutral)—and in the case of OU, President Boren regulated the speech based on it’s content. His reason for expelling the students was based on the racist and exclusionary aspects of the speech, thus clarifying that he disliked the words uttered and thereby penalized the students for their speech’s content rather than how such words were said. According to Associate Professor of Law at The University of Chicago, Geoffrey R. Stone, “the Supreme Court has been especially wary of government action that restricts speech because of its content.” The only time that speech can be regulated based on its content, or what is actually uttered, is when it falls into “categories of expression, such as obscenity, false statements of fact, or fighting words” and the Court has sustained “content-based restrictions of ‘fully protected’ expression in only the most extraordinary circumstances.” In this case, however, President Boren unconstitutionally punished the students’ speech in a content-based manner regardless of the fact that what was said was nowhere near obscene, false, or intended to cause a fight for it did not portray offensive sexual matter, advocate lies of falsehoods (merely opinions), nor was it intended at any one individual to deliberately encourage a confrontation, respectively.
With the chant’s evident racism, in a Time magazine article, Ken Paulson, the President of the First Amendment Center and Dean of the College of Mass Communication at Middle Tennessee State University, stated that while “‘[t]he impulse to expel is understandable[,]… the decision is on constitutionally questionable ground’” because “‘[a] public university is subject to the free speech guarantees of the First Amendment and may not punish students because they hold offensive view.’” Eliza Gray, author of the aforementioned article about the illegality of Boren’s expulsion, claims that just because a public school does not believe in, like, or condone certain speech that they believe may lack social value, they have no right to expel a student on that basis because students are guaranteed constitutional rights. Professor Eugene Volokh legally analyzes free speech on college campuses and makes the assertion that because the lyrics of the students’ chant refer to violence (when they elude to lynching African Americans), First Amendment protection is not automatically retracted since it does not technically fall into certain categories of unprotected speech, such as incitement to imminent lawless action or true threats.
While some may think that the aforementioned lyrics clearly incite violence or threaten African Americans therefore justifying Boren’s expulsion, Supreme Court precedent helps us to analyze and verify the unconstitutionality of his actions. In Brandenburg v. Ohio (1969), Clarence Brandenburg, a leader of the Klu Klux Klan in Ohio, was not punished by the highest court in the land for his racist speech—notably advocating that “the n****r should be returned to Africa, the Jew returned to Israel”— because his speech was protected and did not incite imminent lawless action. Likewise, at OU, the students’ racist chant that said “There will never be a n****r at SAE” would have been protected using First Amendment free-speech doctrine following precedent set by Brandenburg because public universities are required to extend First Amendment rights to their students.
In terms of “incitement to imminent lawless action,” a few college students wrote an article in USA Today which argued that the SAE brothers’ chant resulted in “a black man… hanging from a tree in Mississippi.” This is a weak claim of the very few that have tried to prove that the racist chant resulted in violence against African Americans. The article implies that because the two students at OU arguably advocated violence and exclusion against African Americans, people outside of the campus (and even the state) decided to lynch a convicted felon, Otis Byrd. However, Byrd went missing two weeks prior to having been found dead on March 19th, 2015, according to a report from CBSNews, which was well before the SAE brothers chanted those lyrics. Also, one cannot simply argue that the lyrics of the chant influenced someone to lynch an African American since there was “no evidence of foul play [homicide] in the death of a black man found hanging from a tree in Mississippi.” Furthermore, there is no proof that there was any imminent lawless action that resulted from the chanting of the song and therefore, the speech should not have been punished based on its content.
Additionally, in Watts v. United States (1969), an 18 year old alluded to assassinating President Lyndon B. Johnson, but the Court ruled that it was a “political hyperbole” and rather, “the Government [must] prove a true ‘threat’” since such speech was protected under the Free Speech Clause. Similarly, at OU, the chant that alluded to lynching African Americans by saying “You can hang him from a tree” is therefore the same type of speech that receives the extension of First Amendment protection. The chant was clearly not a true threat for there was no direct or specific target and the chant, according to Professor Volokh, “wouldn’t have been taken by any listener as a threat against him or her.” Furthermore, Boren’s application of the school’s abusive conduct provision to the racist chant was unconstitutional because, as Professor Volokh says, “speech doesn’t lose its constitutional protection just because it refers to violence” because “racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech. That has been the unanimous view of courts that have considered campus speech codes and other campus speech restrictions.”
Colleges across America have always been havens for free speech where diverse opinions and ideologies are shared and debated among students who seek knowledge and therefore Boren’s expulsion was counterproductive insofar as it eliminated a debatable idea from the marketplace. The common saying “[d]on’t teach students what to think; teach them how to think” reinforces the necessity of the freedom of expression and speech on college campuses for its suppression inhibits the sharing of knowledge, encroaches on academic freedom, and obstructs the exchange of ideas. Scholar and Yale Law School graduate, Joseph Blocher, argues, on the contrary, that such harmful speech (as seen at OU) is “grouped into the “market failure” category… [and] arguably cause[s] harms that cannot be remedied by more speech.” Yet, while everyone may not agree with an opinion that is shared, that doesn’t justify its limitations for it is up to the individual exposed to the speech to decide whether or not it is beneficial and use it to further their intellectual development. With that in mind, the American Association of University Professors (AAUP) produced a statement in 1992 on Academic Freedom and Tenure to highlight to importance of preserving free speech on public college campuses. They noted that “rules that ban or punish speech based upon its content cannot be justified” and a college “fails to fulfill its mission if it asserts the power to proscribe ideas.” Thus, nothing can justify limiting speech simply because it offends someone else or is not an idea that the majority condones. These ideas, regardless of how low-value some people might make it out to be, add to the marketplace and promote intellectual and academic development and the exchange of ideas.
Some argue that hateful speech that advocates racism or exclusion, as is the case at OU, has harmful affects on those targeted by the words uttered; however, I argue that while that may be true, the suppression of such speech causes the same, if not worse, harm to students who cannot freely express their opinions. Columbia University Professor in Political and Racial Philosophy, Andrew Altman, asserts that “hate speech can cause a variety of other harms, from feelings of isolation, to a loss of self-confidence, to physical problems associated with serious physiological disturbance.” Counter to his argument, I assert that government limitations on the freedom of expression and speech hurt students at public universities in two predominant ways: academically and physically.
First, in New York Times Co. v. Sullivan (1964), the Supreme Court ruled that “debate on public issues should be uninhibited, robust, and wide-open” and the only way for such robust discourse to effectively occur would be for most opinions, regardless of their content or approval from the majority, to be freely put into the marketplace ideas. By the University of Oklahoma restricting such opinions, students no longer have the capability to freely express themselves and that is a clear and evident encroachment on their intellectual development. Likewise, in the absence of exposure to a variety of different thoughts and ideas, and according to an article written by Foundation for Individual Rights in Education (FIRE) who, like myself, advocates the freedom of speech on college campuses, “[s]uppressing speech can easily lead to… a closed-minded arrogance” (emphasis mine). Additionally, “vindictive protectiveness teaches students to think in a very different way. It prepares them poorly for professional life, which often demands intellectual engagement with people and ideas one might find uncongenial or wrong” (emphasis mine). Greg Lukianoff, President of FIRE, as quoted in a Cato Institute article about surpassing free speech on college campuses, conducts a study in his book Unlearning Liberty and illustrates that “students’ sense of the safety of expressing unpopular views steadily declines from freshman year… to senior year.” Thus, such under exposure to diverse ideas and the fear expressing unpopular ideas inhibit academic growth among college students and negatively impact their future.
In addition to the plethora of educational issues, the suppression of free speech physically harms students as well. Greg Lukianoff argues that “protectiveness [of hateful speech] may be teaching students to think pathologically” which has a series of negative consequences and perpetuates unstable and degraded mental and physical health. Professor Andrew Altman claims that hate speech can result in “physical problems associated with serious physiological disturbance” for its victims; yet this is true more so for the suppression of hate speech. Law scholars Richard Delgado and David H. Yun support my argument insofar as they assert that “[f]ree speech thus functions as a pressure valve, allowing tension to dissipate before it reaches a dangerous level” This proves that if we suppress speech the way that President Boren did at OU, students would be unable to express their feelings and tension would subsequently build up and result in acts of violence which would physically harm both the speaker and the intended target. Likewise, Susan Brison, chair of the Department of Philosophy at Dartmouth College, illustrates temporary and potential harms of the victims of hateful speech to be “increased heart rate, elevated blood pressure, sweating, [and] shaking;” however, such results are typically not long-lasting affects. In addition, in an article written by a student at California State University, the American College Health Association (ACHA) states that “stress in moderation may actually be beneficial… [since] managing stress rather than eliminating it all together may be healthier for students’ overall mental well-being” and “when stress is associated with a physiological response, the stress reaction may actually help increase a persons adrenaline so that they may meet daily challenges efficiently.” Moreover, hateful speech can arguably be beneficial to some students for the healthy stress that it generates. Suppressing such speech, however, has longer-lasting negative affects to the speaker whose ideas are suppressed because the inability to freely express how one feels, especially in an academic arena, causes feelings of under-representation, isolation, and a loss of confidence.
In addition to the aforementioned feelings, drawing on Altman’s assertion of “serious physiological disturbance,” limiting hate speech and hateful expression generates a greater physical disturbance to those students who now experience the inability to freely speak what is on their mind. Not only is such harm a potential threat to the future generations of college students, but it “may be more immediate, too. A campus culture devoted to policing speech and punishing speakers is likely to engender patterns of thought that are surprisingly similar to those long identified by cognitive behavioral therapists as causes of depression and anxiety.” With that, according to an article entitled “Depression and College Students” reviewed by several doctors, “depression is the number one reason students drop out of school or die by suicide” and “[i]n addition to dropping out, depressed students are at a greater risk of developing problems such as substance abuse.” This epidemic is clearly perpetuated with the suppression of free speech such as that seen at OU earlier this year.
University of Oklahoma President David Boren’s expulsion of the SAE members for simply chanting a few lyrics, as racist as they may be, violated the free speech rights guaranteed by the First Amendment and was counterproductive to the pedagogical mission of public universities around the country. Colleges strive to generate robust debate about pertinent issues, and Boren’s expulsion simply throws away valuable ideas. Suppressing hate speech does not subsequently suppress feelings of hate, but it does engender fear of being expelled for what one believes in and causes educational and physical harm to students across the nation.
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