Background

On Tuesday this week, two members of the University of Oklahoma chapter of the Sigma Alpha Epsilon fraternity were expelled after being caught on video on their way to a fraternity event leading the following chant, set to the tune of “If You’re Happy and You Know It:”

There will never be a n——r in SAE

There will never be a n——r in SAE

You can hang him from a tree

But he’ll never sign with me

There will never be a n——r in SAE

David Boren, president of the university, addressed the expelled students in a press release, noting, “You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”

Almost immediately following the students’ expulsion came a chorus of legal experts sounding Boren’s violation of the students’ First Amendment rights. Says UCLA’s Eugene Volokh, “Racist speech is constitutionally protected…That has been the unanimous view of courts that have considered campus speech.” Robert Nelon, a local media law attorney, adds, “The university would be better in tune with the Constitution if they took to the public forum…and met speech with speech.”

I am unsatisfied with the knee-jerk response of these legal pundits regarding Boren’s decision. To be sure, there are exceptions to our First Amendment rights, depending by turns on the content and context of our speech; I wish to review two of the most applicable exceptions to the speech at hand that might vindicate the actions of the university.

Title VI of the Civil Rights Act of 1964

Taking a look at Boren’s reasoning for expelling the students reveals that it was not the speech itself that led to his decision, but the creation of “a hostile educational environment for others.” Under federal anti-discrimination law, namely Title VI of the Civil Rights Act, public universities have a duty to guarantee students an educational environment free of hostility toward their race or sex. So the students were not expelled for expressing their opinions per se, but because their speech was form of conduct creating a hostile environment for black students. Expelling the students who were inculcating the fraternity members with a hostile attitude was thus done with the aim of removing agents from the school who are responsible for creating a hostile educational environment. It is the job of the university to balance the goals of academic freedom and the maintenance of a civil educational environment, and it should be within its right to interpret the First Amendment to find that balance for themselves.

Incitement

The Supreme Court has held that advocating the use of force is speech unprotected by the First Amendment when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action,” Brandenburg v. Ohio (1969). There is little doubt the chant advocates violence, as it explicitly condones lynching, but did it constitute speech that is intended to incite lawless action? Perhaps. Though no violence was incited as a result of this particular chant, courts have nonetheless viewed similar speech in context and interpreted it as such. In Dariano v. Morgan Hill Unified School District (2014), white American students at a public school wore t-shirts bearing American flags on Cinco de Mayo, a Mexican holiday. Based on a prior history of racial conflict at the school, the Court upheld the school’s decision to force the white American students to wear their t-shirts inside out to avoid retaliation by Mexican students.

Context matters in SAE’s case as well. America’s Black Holocaust Museum has recorded a long tradition of lynchings in Oklahoma, spanning from 1892 to as recently as 1998, at least one of which was reported to have occurred in Norman, the resident city of the university. On a national scale, racial tensions have been intensifying, especially with the recent unearthing by the Department of Justice of the extremely racist treatment of black residents in Ferguson, Missouri by their local police. Such reports have had an impact on local communities, including universities. Indeed, Cornell University’s Sigma Pi fraternity was found to have thrown liquor bottles off a balcony at black passerby, shouting slurs and calling them by the name “Trayvon,” a reference to the first of a string of black teenage homicide victims whose story has recently been taken on by national media. Arizona State University’s Tau Kappa Epsilon was expelled just last night after hosting a party in which partygoers were encouraged to dress according to black stereotypes. This was after the fraternity was on probation for sending twenty of its members to attack a black fraternity member of Delta Kappa Epsilon in his home in 2012. Further, Shaun King, in his article for the Daily Kos, “A Deeper Examination of the Sheer Joy of Oklahoma Students Chanting about Hanging N*gg*rs from Trees,” notes the “giddy happiness, by whites, at black pain,” demonstrated by the fraternity members, which he notes is an essential part of lynch mob culture. Though no violence ensued as a result of the chant, it is hard to ignore the tradition behind it and its very real potential to incite violence.

Conclusion

One could construe the University of Oklahoma’s actions to have been necessary to meet other goals besides punishing racist speech. Indeed, it would be difficult to call the fraternity chant “pure speech,” words limited to in form to what is necessary to convey an idea, which would be entitled to the full protection of the First Amendment. There are real and violent implications in the content and context of the chant, and the university may indeed have been justified in expelling students who advocate such speech that might interfere with the university’s Title VI goal of fostering a non-hostile educational environment and the prevention of racial violence.