The University of Oklahoma took swift action on Tuesday when it expelled two students and Sigma Alpha Epsilon fraternity members for racist chants that were captured on video and posted on the internet. The move was so immediate and punitive that University President David Boren was praised for taking a stand against the abusive language. There was no drawn out, public display of a crisis in conscience.
The video was publicized March 8, and the students were expelled two days later. His words directed at SAE students driven from their frat house were particularly direct:
“We don’t provide student services to bigots.”
While the internet was pleased, some Constitutional scholars have begun to raise First Amendment concerns. Did the university over-reach when it expelled the students from school? And what if they sue?
Here are two reasons the expelled students might be successful if they sued, according to the Washington Post:
1. The University of Oklahoma is a public institution.
Unlike a private university, the University of Oklahoma is funded by taxpayers, which, in essence, makes the school an arm of the U.S. government.
Constitutional lawyer Will Nevin says, "So in effect, it's not the university punishing a student for a racist video or social media post, it is the state itself acting against an individual – a person, with all the rights guaranteed under the First Amendment."
While SAE, being a private club, can expel an individual for violations of its code of conduct, a public entity is on shaky ground.
2. The students’ chants may not amount to abusive conduct.
As part of the University of Oklahoma’s code of conduct, it can expel a student who is proven to display abusive conduct toward another. That conduct can include extended intimidation or harassment, but simple teasing does not.
Should a court find that the students’ chants were “isolated incidents,” and not severe or pervasive behavior, it might also find that the university violated the students’ First Amendment rights by expelling them.
"The speech is abhorrent, but the 1st Amendment protects unpopular speech," wrote Joey Senate, a media law professor at Oklahoma State University in Stillwater.
The students have apologized. But will they sue?
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