Newsletter

April 2015

Congratulations, university of Oklahoma, in your outrage you just violated the law

David French

This week several
University of Oklahoma frat boys were caught on tape singing a vile, racist song
(and, no, it wasn’t “unconscious” racism or “coded” racism — it was straight up
segregation-era hate). The video triggered a tidal wave of outrage on and off
campus. A top football recruit “de-committed” to OU and committed to Alabama,
the national fraternity expelled the local OU chapter, and students, coaches,
professors, and administrators marched in protest.

To this point, the
matter is rather simple. The SAE students engaged in racist expression, and
private citizens countered with expression of their own — doing what the
marketplace of ideas does best, countering bad speech with better speech.

Then, the
government got involved. OU president David Boren has summarily expelled two
students allegedly responsible for the chant. I agree with Eugene Volokh. This
action is almost certainly unconstitutional. I’m not going to repeat his entire
analysis, but his first point should be sufficient:

[R]acist 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; 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.)

Our public
universities are becoming national leaders in trampling the Constitution to
legislate their brand of “inclusive” morality. FIRE’s Robert Shibley gets the
issue exactly right:

Censorship isn’t
necessary for those who are confident in the truth of their views. It’s a signal
of insecurity and displays a fear that if an idea is allowed to be expressed,
people will find that idea too attractive to resist. Somehow, college
administrators are convinced that if they don’t officially punish racism, their
students will be drawn to it like moths to a flame. But there’s simply no reason
to expect that. Given the history of campus activism in our nation from the
civil rights movement onward, there are myriad reasons to expect the opposite.

Instead of
government crackdowns on a viewpoint, it is far better to let the marketplace of
ideas determine the social consequences for racist speech. In this instance, the
OU members of SAE are not only likely to spend the rest of their college careers
as pariahs but to be hounded to the ends of the earth on social media and
exposed for posterity on Google.

When I was at FIRE
I fielded a call from an angry administrator demanding to know what he could do
to “take action” after a handful of Klansmen posted racist flyers on a community
bulletin board. He forwarded the flyers, which were full of typos and barely
legible. I asked him whether he thought his students would be persuaded by this
nonsense or would use it as an opportunity to express their support for their
African-American brothers and sisters. The latter, he said, and he explained the
groundswell of student expression in response. “There’s your ‘action,’” I told
him. Let the students send their own message. If the Klan wants an argument, it
will lose.

I hope these students find the courage to sue — not because anyone agrees with
their words but because the First Amendment needs a defense. They said terrible
things, but they did not violate the law. Ironically, the only lawbreaker here
is a university so incompetent that it created First Amendment martyrs out of
students who redefine the word “crass.”

National Review: The Corner, March 10, 2015.