UA student under investigation after using racial slurs on social media

Tidewater said:

Second, she seems to be under the impression that because you are in the South, it is okay to use racial slurs. I would argue just the opposite. Southerns, white and black, have to interact with each other and learn how to make things work. I would bet New Jerseyans do not have to do that, unless they live in NY or Phillie metro.

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crimsonaudio said:

I hope there's some sort of code of conduct this violates and they can boot her worthless butt back to NJ.

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4Q Basket Case said:

As far as free speech goes, the fact that she can't be jailed or sued doesn't mean there are no consequences. And last I checked, attendance at a university, even a public one is a privilege, not a right.

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George Mason University appeals from a summary judgment granted by the district court to the IOTA XI Chapter of Sigma Chi Fraternity 1 in its action for declaratory judgment and an injunction seeking to nullify sanctions imposed on it by the University because it conducted an "ugly woman contest" with racist and sexist overtones. We affirm.

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4Q Basket Case said:

What a maroon.

Booted from school and her sorority, and her troubles have only begun.

This will follow her for years, if not life. Also, she has an unusual name, easy to remember.

She's going to have to change it.

As far as free speech goes, the fact that she can't be jailed or sued doesn't mean there are no consequences. And last I checked, attendance at a university, even a public one is a privilege, not a right.

If her parents / lawyers have an ounce of sense, they won't fight the expulsion. That would only draw more attention to an already-embarrassing situation. Girl needs to go home, lay low, do volunteer work for a year, then resume education out of the country.

I'm not sure even that will shake the stench off.

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TIDE-HSV said:

What was that which was said about prejudice in the North the other day?

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TIDE-HSV said:

A district court case is of very limited value as precedent. Well, really none and I don't think she has a case.

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TIDE-HSV said:

Educational institutions are normally granted wide discretion in disciplinary matters. Otherwise, a university would soon become ungovernable. I'm free to stand outside my workplace, loudly exclaiming what a lousy employer my boss is. He is also perfectly free to fire me from it. As I was trying to make clear the other day, the 1st Amendment is all about prior restraint. When you get it, explain it to the president...

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University of Oklahoma president David Boren said, “If I’m allowed to, these students will face suspension or expulsion.” [UPDATE: The president has indeed expelled two of the students.] But he is not, I think, allowed to do that.

1. First, 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 — see here for some citations. The same, of course, is true for fraternity speech, racist or otherwise; see Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (4th Cir. 1993). (I set aside the separate question of student speech that is evaluated as part of coursework or class participation, which necessarily must be evaluated based on its content; this speech clearly doesn’t qualify.)

UPDATE: The university president wrote that the students are being expelled for “your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.” But there is no First Amendment exception for racist speech, or exclusionary speech, or — as the cases I mentioned above — for speech by university students that “has created a hostile educational environment for others.”

2. Likewise, speech doesn’t lose its constitutional protection just because it refers to violence — “You can hang him from a tree,” “the capitalists will be the first ones up against the wall when the revolution comes,” “by any means necessary” with pictures of guns, “apostates from Islam should be killed.”

3. To be sure, in specific situations, such speech might fall within a First Amendment exception. One example is if it is likely to be perceived as a “true threat” of violence (e.g., saying “apostates from Islam will be killed” or “we’ll hang you from a tree” to a particular person who will likely perceive it as expressing the speaker’s intention to kill him); but that’s not the situation here, where the speech wouldn’t have been taken by any listener as a threat against him or her. Another is if it intended to solicit a criminal act, or to create a conspiracy to commit a criminal act, but, vile as the “hang him from a tree” is, neither of these exceptions are applicable here, either.

4. [UPDATE: Given the president’s letter, it’s clear that the students are being expelled solely for their speech, and not for the reason discussed in the following paragraphs.] Some people have suggested that the speech may be evidence of discriminatory decisionmaking by the fraternity in admitting members. A university may demand that groups to which it provides various benefits not discriminate in admissions. See Christian Legal Society v. Martinez (2010). Indeed, nondiscrimination rules are applicable to groups generally, even apart from any benefits they get; much depends on whether the groups are seen as small and selective enough to be covered by a right to “intimate association,” and on whether apply antidiscrimination law to the groups would interfere with the groups’ expression of their ideas, and thus burden their right to “expressive associations.” See Roberts v. U.S. Jaycees (1983); Boy Scouts of America v. Dale (2000). The university might thus be able to discipline students who (a) are involved in a fraternity’s admissions decisions, and (b) can be shown to have denied membership to people based on race, or intentionally tried to communicate to potential members that they would deny them membership that way. I don’t think that a discussion saying that discrimination ought to take place, or even that at some unspecified time it will take place, would suffice to constitute a violation of the antidiscrimination rules, though it might be used as evidence in a future case where discrimination against a particular applicant might be alleged.

But even if the group is found to have discriminated against black applicants, and some particular members were found to have participated in that decision, the penalty for that has to be based on the penalties that are actually meted out to people who violate this rule. If discrimination by a group generally leads to a fine against the group, or a reprimand of the participants, or even derecognition of the group, the university can’t then expel students who engage in the same action but who also engage in constitutionally protected speech — that sort of disparate treatment shows that the school is really punishing people for their speech, not for their conduct.

This is a familiar principle from antidiscrimination law: if a black student is expelled based on conduct for which white students are generally just mildly reprimanded, the law recognizes that the expulsion was based on the student’s race, not just the student’s punishable conduct. The conduct in that situation is being used in large part as a pretext for race discrimination. Likewise, if SAE members are expelled based on conduct for which people who didn’t engage in SAE’s speech would generally just be mildly reprimanded, the expulsion would be based on the speech, not the members’ punishable conduct, which would just be pretext for punishing students for the ideas they were expressing to each other.

5. Of course, this just applies to the university. It certainly makes sense that the national fraternity may suspend the student chapter, and that other fraternity or sorority organizations refuse to deal with the chapter (or even its students). Fraternities, at least in principle, aim to promote certain principles of morality and behavior, such as the national SAE’s True Gentleman creed:

The True Gentleman is the man whose conduct proceeds from good will and an acute sense of propriety, and whose self-control is equal to all emergencies; who does not make the poor man conscious of his poverty, the obscure man of his obscurity, or any man of his inferiority or deformity; who is himself humbled if necessity compels him to humble another; who does not flatter wealth, cringe before power, or boast of his own possessions or achievements; who speaks with frankness but always with sincerity and sympathy; whose deed follows his word; who thinks of the rights and feelings of others, rather than his own; and who appears well in any company, a man with whom honor is sacred and virtue safe.

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SAE may quite rightly insist that people who so sharply depart from such principles no longer use SAE’s name. (I don’t think a university may suspend a fraternity just based on its speech, but that question is likely rendered moot by national SAE’s actions here.) Likewise, I imagine that the fraternity members’ speech will more generally affect their social lives and their professional lives, as some people choose not to do business with them in the future. (In some states, even private employers are limited in their ability to discriminate against employees or job applicants based on their speech, but that’s true only in some states and generally only as to employment; and, rightly or wrongly, such discrimination often happens without the applicant’s even knowing that it’s happening.) How long this sort of misbehavior should dog a person is an interesting ethical question, but in any event it’s pretty clear that the offending students are going to pay a substantial social and likely economic price for their actions.

Under the First Amendment, though, the government — including the University of Oklahoma — generally cannot add to this price, whether the offensive speech is racist, religiously bigoted, pro-revolutionary, or expressive of any other viewpoint, however repugnant it might be.

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TIDE-HSV said:

i had edited that out, after I saw it was a 4th Circuit case and read the opinion. I thought I had deleted it. Of course it is of more weight than a district court case.

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TIDE-HSV said:

And the holding is sound. My point is the same. She can be expelled, just as the Sigma Chi members can be disciplined (and probably were). The court made that clear. She couldn't have been prevented, under the 1st Amendment, from making the video, just as the Sigma Chi couldn't have been prevented from performing the skit in advance...

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Public universities are bound by the First Amendment. Thus, both public university students and public university teachers are entitled to some protection from discipline, firing, and other retaliation for their speech. In some areas, this protection is pretty clear and pretty broad. In others, it's relatively vague. Student speech outside the classroom and outside academic assignments. Most clearly, students generally may not be expelled, suspended, or otherwise disciplined for what they say in student newspapers, at demonstrations, in out-of-class conversations, and the like. The Supreme Court made this clear in Papish v. Board of Curators, 410 U.S. 667 (1973), and Healy v. James, 408 U.S. 169 (1972). Lower courts have followed suit, especially in the late 1980s and 1990s cases that have struck down student speech codes. See, e.g., Dambrot v. Central Michigan Univ., 55 F.3d 1177 (6th Cir. 1995); Iota Xi v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993); UWM Post v. Univ. of Wisc., 74 F. Supp. 1163 (E.D. Wis. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989).

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92tide said:

i sense community college in her future.

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Displaced Bama Fan said:

I'm sure she can hook up with Richard Spencer's organization.

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crimsonaudio said:

This might be an odd opinion, but I probably have those quite often...

I'm proud that UA booted her even if (big if) it means she sues and wins. I'd MUCH rather UA say that money isn't as important as making a stand than vice versa.

Roll Tide and thank you UA for booting this piece of trash to the curb.

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