Sooner Ethics Quiz: Abuse Free Speech Rights, Or Ignore Them?

David Boren, the president of the University of Oklahoma, announced that two students would be expelled from the school for leading a racist chant that was preserved on a video and went viral on YouTube. The video shows tuxedo-clad men from the Sigma Alpha Epsilon fraternity  on a bus chanting :

There will never be a nigger at SAE
There will never be a nigger at SAE
You can hang him from a tree
But he’ll never sign with me
There will never be a nigger at SAE

Who would want to be in a house with these assholes?

 The national fraternity apologized and closed the OU chapter. That was a proper response. (Tell me again what’s good about fraternities.) First Amendment specialist Eugene Volokh, however, pointed out on his blog that the expulsion was unconstitutional:

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 …The same, of course, is true for fraternity speech, racist or otherwise…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.”

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.

Hey, Oklahoma…Rodgers and Hammerstein just called. They’re officially changing the name of the musical and the song to “North Dakota!”

Your Ethics Alarms Ethics Quiz:

Which is the greater ethics breach: the students abusing their First Amendment rights, or the University of Oklahoma violating them?

For me, this is the easiest of questions: the worst ethics breach is the school trampling on free speech, even stupid, offensive free speech by racist frat boys. In the end, their conduct, wrong as it is, is just words. They are boorish, rude, mean-spirited clods, and now that everyone knows, they should be shunned and treated like the pariahs they are by those unfortunate enough to have to share a campus with them.

The school’s action in expelling them, however, is educational malpractice, and endangers the foundation of American liberty and academic freedom. This a real integrity test for the ACLU: let’s see if they still have that old Skokie gusto, and can rouse themselves to protect the Bill of Rights even when it means siding with despicable victims of censorship.


63 thoughts on “Sooner Ethics Quiz: Abuse Free Speech Rights, Or Ignore Them?

    • I find some commentary rather disturbing.

      Morgan child wrote:

      You know, “Volokh,” (I just love saying his name; it clears the throat) the overwhelming majority of men masturbate. I’d place you in the top 5%. Writing all those words so soon after the event must have been, well, titillating. No doubt, you were all in a rush.

      However, I could give a dam* about the Constitution: I don’t hold it sacred. I think the Germans have the right idea: Step up on a soap box and start talking about killing Jews; they arrest your as*. They don’t wait for “Holocaust II” to be shown on cable.

      The “students” were dealt with appropriately. OU was right to send the message that they and their ilk are not welcome or representative of what OU WANTS to stand for.

      There is such a thing as being “dead right.” You, my friend, are a corpse with exacting logic; but let me remind you, a vending machine can dispense the law; it takes a whole human being to render justice. What we all witnessed on the video is not worth defending. A cancer’s only “right” is to be cut out.

      To which I replied

      so, if some cops accuse you of raping a young girl and decide to dispense without a trial, and opt to summarily put a bullet through the inert mass which passes for your head, I guess you would be okay with that. You do not give a “dam* about the Constitution”.

      How could there be so much derp?

    • I side with free speech too. The question is – what is the boundary between speech and action?

      I think it should be drawn liberally, the benefit of doubt going to speech.

      So I put fault mainly on the University, as they were in a position of relative power.

      • I believe that the test articulated in Brandenburg v. Ohio, , 395 U.S. 444 at 447 (1969) should apply with regards to speech that may result in conduct.

  1. The University, because as part of the government, it must be bound to a higher standard, and it must not violate civil rights.

    I do find it amazing that so many people are ignorant, in some cases invincibly, about First Amendment case law. See the Disqus comments here.

    In sum, President Boren turned the villains into victims.

  2. How about this one, just for fun: The fellas over at the SAE house were expelled because they were caught out regarding their policy of refusing to admit members solely on the basis of their race. An equal rights violation by an entity sanctioned by and supported by a State University funded with taxpayer dollars. (Sure, SAE’s a private club and maybe they own their house and it’s on private property but it only exists because of OU and receives all sorts of invaluable benefits from the University, such as, if OU weren’t there giving classes and doling out degrees, there would be no reason for SAE to exist.) I’d say kick them all out. Last I checked, there are other schools in Oklahoma.

    If anybody wants to go all Skokie on this, let’s have someone open a KKK college chapter at Harvard or Brandeis.

    Of course, I’m with Jack. Why fraternities? Why do guys still want to be in them. A mystery.

    Sorry, I just find all this righteous indignation cloaked in First Amendment fervor a little hard to take. Seems a little too easy.

    • How about this one, just for fun: The fellas over at the SAE house were expelled because they were caught out regarding their policy of refusing to admit members solely on the basis of their race.

      The letter does not even claim any specific acts of discrimination, only mumbo jumbo about a hostile educational environment. (Notably, neither of the words “hostile” nor “environment” are found in Title VI.)

      If anybody wants to go all Skokie on this, let’s have someone open a KKK college chapter at Harvard or Brandeis.

      Are those public universities?

  3. A college has the right to set what standards it deems appropriate within the bounds of the law and in keeping with open scholasticism. Such decisions, however, are (or should be) under the review of- in succession- the Board of Regents, the state government and the taxpaying citizens who ultimately support the state colleges. If the University of Oklahoma decided to decertify a recognized fraternity, though, they should have more than one such incident to make their case. The administration is likely very aware that their decisions is this and other matters- to include policies that are often far more heinous than a pack of drunken frat rats- are rarely reviewed by anyone except an occasional, irate parent. The University president is identified as David Boren. Is that the same former congressman who left office under a cloud?

    • “A college has the right to set what standards it deems appropriate within the bounds of the law and in keeping with open scholasticism.” That was missing from this discussion.

      As Dean Vernon Wormer reminds us, “Fat, dumb and stupid is no way to go through life, son.”

        • Senator Blutarsky wasn’t really fat, at least by modern standards or when he left Faber College. Unlike Flounder, to whom Dean Vernon Wormer’s advise was directed, I believe. But if I was casting “Senator Snort, the Movie” in the late ’70s, Belushi would have been my man. Biden is just a trim, fairly well-kempt version of Snort. As is McCain, the Budweiser distributor, er, Senator from my home State.

            • True. But maybe they’ll google him. Or maybe I can find some of the old cartoons on the internet which our more recent Senator Snort from Tennesee invented. (Worse yet, they may not have seen “Animal House,” come to think of it.)

              • While we’re at it, we can introduce them to Moon Mullins, Bratinella, Jupiter T. Bunglebottom and the Katzenjammer Kids! Betty Boop still stands on her own merits.

      • ““A college has the right to set what standards it deems appropriate within the bounds of the law and in keeping with open scholasticism.””

        Of course, the 1st Amendment is one of those laws that establish bounds on what can be done…

  4. And isn’t there an element of group punishment involved here? Maybe I haven’t read this properly, but if they expelled an entire fraternity on the behavior of the asshats in that bus, that hits me as unconstitutional as well.

    • Yes, it would.

      And without those expulsions, they could have used the national headquarter’s closure of that chapter as an excuse without raising First Amendment issues…

    • To be clear, we’re talking about different levels of expulsion.

      Only 2 students, so far, have been academically expelled.

      The fraternity, as an organization, has been kicked off campus, free to continue as a fraternity (in the eyes of OU – though no longer in the eyes of the frat’s parent organization), just not on campus. Other than the 2 students already mentioned, the other students are still attending the school.

      • Misunderstanding on my part, I was under the impression that all the students in the frat had been expelled from OU.

      • The two frat guys created a hostile learning environment? I think the only students who were going to suffer a hostile learning environment were the two guys who were expelled. If the President had made the correct decision to uphold the right to free speech and allowed natural consequences to take place those jerks might have had the opportunity to grow and become better human beings. Becoming a social pariah would have been much more effective than being expelled and it would have offered the boys a chance at redemption for their behavior if they showed true remorse. The boys acted like complete jerks so let them receive the full social consequences and let them navigate what comes their way on campus due to their behavior. That would probably have been a better learning experience for those boys than any class they may have taken at the university. I’m assuming the University President felt that black students needed to be protected from this frat duo? Then he certainly doesn’t give his black students much credit.
        And what happens when a woman goes to the college administration complaining about a hostile learning environment and wants something done about the guy she used to date but is now leaving voice mails calling her a slut, whore and even worse? I can think of a million different scenarios of what could be considered a much more relevant hostile learning environment than what got these two boys expelled. By expelling these boys, the President has opened himself up to a very bad precedent and will now be questioned as to why he doesn’t expel other students whose speech may be creating “hostile learning environments” for other students or group of students. Good luck to him with that.

          • I suspect you are correct. There were so many different ways he could have handled this within the law and not look as if he was supporting racist sentiment. How can anyone trust such a coward?

  5. Maybe it’s because I work in corporate ethics and this stuff gets drilled in every day – but I’m 100% with David Boren on this one. I don’t mean to say I think he’s on constitutionally solid ground – he may not be – however, I believe it to have been the right course of action for many different reasons.

    The university is put into a precarious position with this situation that they have limited power to control. The video shows behavior that openly offends the senses and immediately damages the reputation of the university, though no employee or administrator took part. Kids in High School see this video knowing they will have to pick a university to attend and do they want to spend time and money where this activity occurs? If you have a choice – do you want to spend time at an institution that has or does not have a viral video insulting your race or the race of your friends?

    Universities are quasi-government – they are not government. They have a product to sell to students and the students trade on the name of their educational institution in the open marketplace. This video financially damages the product that was purchased by the other students and when top talent decides to study elsewhere, financially damages the development and excellence of the product the university sells to future students.

    Others on here have commented that they don’t believe in “hostile environments” or that 2 people could create one. As a professional, I can see that they have a key component missing from their education.

    The public turned to the university to see their action. Would the university condone the behavior? Would the university deflect responsibility? The university chose to lead. They’ve taken action to mitigate harm, which is best for tens of thousands of students. Considering Sharon would have preferred to leave these gents to “social justice” and “natural consequences”, I think it was probably best for them too. Nothing quiets a lynch mob faster than showing them that discipline was meted and proportionate to the offense.

    I find the university’s quick and decisive action to be commendable because they are charged with creating a culture and environment conducive to learning. These 2 actively worked against that mission – not to make a point or be provocative. They did so for their pleasure and to foster an exclusionary culture in a fraternity on campus. In doing so, they alienated thousands of their peers and damaged the institution to the core.

    • All true.

      But it’s still a First Amendment violation. Clear as a bell. Pure speech. You can’t punish a citizen for speech content. Fire him in a corporation? Sure. That’s not this.

      Freedom’s a bitch.

      And I think OU IS responsible, and should have to deal with this substantively, because it’s obviously doing a fairly crummy job educating young minds, if this COULD happen. One outlier idiot, sure. A bunch like this? Nope: their admissions policies, oversight, orientation and culture shares the blame.

      Violating free speech isn’t courageous, it’s lazy. That’s why governments and activists keep trying to do it: it’s a lot easier than changing minds and conduct legitimately.

      I hope the school gets sued, big time. I even have a motto: “Racist Rights Matter”

      • Can’t OU just pull an Al Capone punishment on them? Hit them indirectly?

        Can’t nail them for racism but I’m sure there was some pretty hefty underage drinking going on on that bus…

        Of course I don’t like that either.

        OU only has one option and that is protect freedom of speech. It can do anything else to mitigate or educate but it can’t punish.

      • With absolutely no disrespect toward you – I’m going to shrug off your comment and request comment on this: I think it’s the job of the Supreme Court to protect free speech. It’s the University’s job to avoid charges of harassment and discrimination. If they’ve already got some cases on the books and those litigants are looking for a “pattern”, then the University has to nip that pattern anywhere it sees it.

        There are conflicting things at play here and since the University is an organization and these students and their conduct are a part of that organization, I think there’s some level of culpability for the University to act – to correct their culture. Public actions like this change culture and set standards. It will empower every administrator to improve oversight, admission policies, and the general orientation of the student body.

        David Boren may have to get sacked for his restriction on Free Speech, and maybe there was no “right” action that could have been taken. Damned if you do and damned if you don’t. I will say that he took the best action that was available – and that is reasonable.

        • Jesus Tim. It’s the duty of every American to protect free speech. Do I really have to quote Evelyn Beatrice Hall?

          “I disapprove of what you say, but I will defend to the death your right to say it.”

          You disagree with that? The totalitarians are applauding in glee.

          There was no fake cry of fire in a crowded theater and nobody was endangered. There was no threat. Can you seriously be arguing that the President of the US can lock up people with dangerous, ugly opinions to avoid potential riots and criticism—ooh, criticism!—, and rely on the SCOTUS to free them? I see absolutely no difference. This is called CHILLING speech, as you know. Do you trust universities to just chill racist speech? I sure don’t. Look at the FIRE website.

          Trampling on free speech is never the best course, and is dangerous as hell. You appear to be arguing that “hate speech” isn’t protected, and shouldn’t be. Seriously?


          • When it comes to government officials, the Constitution is the first duty.

            Is it any surprise that the enlistment oath for any of the military services, the first part of the oath is to support and defend the Constitution of the United States? That takes precedence before everything else, even obeying orders. People have died defending the Constitution, and there are hundreds of memorials in this country dedicated to people who died pursuant to that oath.

            Preserving, protecting, and defending the Constitution is President Boren’s first duty. Defending, upholding, and preserving the Constitution takes precedence over “avoid[ing] charges of harassment and discrimination”. Charges of harassment and discrimination are surely not worse than death. Or getting your limbs blown off by a bomb. And yet, people have died, people have lost limbs, to defend this Constitution.

            President Boren was not being asked to sacrifice life or limb, and yet he still could not rise up to the occasion.

          • Fine, you win. I was in a mood yesterday and I lost my head. I apologize. Your bringing up a criminal president of the US isn’t even on point though. He’s a direct government official and the answer is obvious. I always get lost in the weeds when it comes to quasi-government institutions where I perceive it to be a privilege to be associated with that institution, not a right. It’s hard for me to see sometimes that rights protect that privilege.

            I write all the time in silly comments on tech sites about Liberty over Life and I should have reminded myself of that before I started writing yesterday. I just need to expand my horizons, application, and thinking.

            • 1. this you, or the other guy?
              2. You lost your head, mine exploded. Tit for tat.
              3. No apology necessary—that was a useful lesson of how outrageous speech and abuse of the right makes rational people doubt the value of free speech.
              4. I was slippery sloping you about the President, and it’s relevant, since he is the ultimate in government action, and would have a lot of support crushing some kinds of speech. Volokh followed up his post with a slippery slope essay of his own:

              Nor would it be limited to things that really are contemptible; as we’ve all seen in past years, “hate speech” and “hostile educational environment” is a label that is cheerfully thrown around, to refer to criticisms of illegal immigration, to people deliberately trampling the Hamas flag, and much more. To quote Justice Jackson in West Va. Bd. of Education v. Barnette (1943), First Amendment law is “designed to avoid these ends by avoiding these beginnings.”

    • Tim… I wouldn’t want these guys to end up with bounties on their heads because the University allowed them to stay. However, I know at least one expelled student and his parents are now in hiding due to threats from the public. I am certain the fallout from Ferguson and other race based issues weighed heavily on the university’s president’s mind when he made his decision. Had he not had to make the decision at this specific time, I think he might have made a different decision.

      • I agree. We don’t get to choose the situations we are presented. We can only consider our options and choose the path the scars us the least. We don’t need another racially motivated riot dividing this country. I think free speech can take one on the chin in this instance for the greater good. Once cooler heads prevail, I’m certain there are appeals and courts that can be utilized to come to the correct final state of things. Until then, these guys weren’t going to be able to focus on their studies anyway and would have had to withdraw for a time.

        • We don’t need another racially motivated riot dividing this country. I think free speech can take one on the chin in this instance for the greater good.


          The Constitution comes first.

          Thousands of Americans died to preserve, protect, and defend the Constitution. A racially motivated riot is not too small price a pay to defend our Constitution.

          Do you think we lack the means to deal with a riot?

  6. I agree with Tim on this one. A university has a responsibility to protect itself and mitigate harm–in this case, financial harm. That means actively doing its best to create an environment that attracts high school students and student athletes looking to attend college; promoting a college that attracts alumnae/i donations; and creating a image that will do well with businesses and organizations that do business/fund research with OU.

  7. I’ve changed my mind. Let the two dopes stay enrolled. Have Boren issue a statement that he’s reconsidered and determined the expulsion was prohibited by the Constitution. Mulligan. Do over. He makes his point and the First Amendment remains sacrosanct. “I wanted to expel these guys but I cain’t.” Our president or our AG would call it a teachable moment. The dopes will withdraw anyway.


    OU is a public university, and as such it can not expel anyone merely for the content of these lyrics. See Papish v. University of Missouri Curators, 410 U.S. 667 (1973) , Healy v. James, 408 U.S. 169 (1972), Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University , (4th Cir. 1993), Ward v. Polite, 667 F.3d 727 at 738-739 (6th Cir. 2012)

    That written, the First Amendment is not an entitlement to a university’s endorsement of that speech. The school may not constitutionally expel them, but neither are they required to give them a trophy.

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