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Tuesday, March 10, 2015

First Amendment suspended at Oklahoma?

The two Oklahoma University students leading the racist chant aboard an SAE party bus have been expelled, according to a statement by the university's president, because they created a hostile learning environment for others. The president emphasized that the speech "impacted the entire university community as it was also distributed on social media."

I have no idea if the students will sue, as they may just want to crawl back under their rock. But if they do go to court, no way the expulsion can withstand First Amendment scrutiny, right? "Hostile learning environment" is not a recognized category of unprotected speech, unless you can squeeze it into some pre-existing category such as fighting words, true threats, or incitement and this plainly is neither.

Wow, between Roy Moore and these schmucks, I'm on a roll this month.

Update: Eugene Volokh weighs in, reaching the same conclusion that this expulsion is improper. He focuses on several points, including that racist speech remains fully protected (outside of threats or fighting words), as do references to violence that are not immediately threatening.

Posted by Howard Wasserman on March 10, 2015 at 02:24 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

I left out the words "to claim" in my comment above, whose first sentence should have read, "The Oklahoma frat boys were hateful morons, but it was simply laughable for the university president TO CLAIM that they created a hostile educational environment in violation of Title VI of the Civil Rights Act. . ."

As I noted in my comment, the president's claim was legally erroneous: Their speech, while reprehensible, would not have created a hostile environment under Tenth Circuit law, all by itself, the university president didn't allege that anything else was fostering a hostile environment, and it does not appear that the campus as a whole was a hostile environment for blacks. Nor would their conduct be punishable based on the premise that it could hypothetically CONTRIBUTE to a hostile environment, because the university's written harassment rule doesn't reach that far (meaning it would violation First Amendment fair notice principles), and because such a broad policy would violate First Amendment overbreadth rulings like Saxe v. State College Area School District (3rd Cir. 2001) and DeJohn v. Temple University (3rd Cir. 2008).

Posted by: Hans Bader | Mar 16, 2015 3:17:23 PM

The Oklahoma frat boys were hateful morons, but it was simply laughable for the university president that they created a hostile educational environment in violation of Title VI of the Civil Rights Act, all by themselves:

"On Tuesday, he expelled the two students who appeared to be leading the chant for creating a hostile educational environment and promised others involved would face discipline."

Under the following Tenth Circuit cases, the hateful chant would not be deemed severe or pervasive enough to create a hostile environment. See, e.g., Witt v. Roadway Express, 136 F.3d 1424, 1432-33 (10th Cir.1998) (overheard racial epithets were not sufficient to show a hostile work environment); Bolden v. PRC, 43 F.3d 545, 551 (10th Cir. 1995) (two racial slurs not enough to show hostile environment); see also Gleason v. Mesirow Financial, 118 F.3d 1134 (7th Cir. 1997) (discounting significance of “second hand harassment”); see also Bivins v. Jeffers Vet Supply, 873 F. Supp. 1500, 1508 (M.D. Ala. 1994) (holding a co-worker once calling the plaintiff a "n---" insufficiently severe to establish a hostile work environment), aff'd, 58 F.3d 640 (11th Cir. 1995).

That is especially true if the chant occurred off campus like a charter bus going somewhere else. Appeals court rulings like Lam v. University of Missouri, 122 F.3d 654 (8th Cir. 1997) have typically rejected harassment claims against schools under Title VI and Title IX based on individuals' conduct – even serious misconduct like “off-campus assaults” -- outside of school.

Nor does it appear from reading the campus newspapers, etc., that the campus is a hostile environment by virtue of other incidents on campus (nor did the university president so argue, or cite any such pattern, in his letter to the expelled students) in conjunction with this one.

In any event, as judges have observed, racial harassment laws are subject to First Amendment limits. See, e.g., Board of Regents of Univ. of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (invalidating college’s racial harassment policy, which could reach racist speech that did not amount to fighting words, "since Title VII is merely a statute, it cannot supersede the requirements of the First Amendment”); Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010) (dismissing racial harassment lawsuit over racially-charged anti-immigration emails, because of First Amendment free speech rights.). Although the racist chant was worthless and devoid of any redeeming value, so if you were going to make a brand new First Amendment exception, it might be here.

Posted by: Hans Bader | Mar 12, 2015 3:05:45 PM

A university is the government if the government operates the university. Drinking, using drugs, cheating, and sexual harassment are not protected by the First Amendment. The chant, for better or worse, is.

Posted by: Howard Wasserman | Mar 12, 2015 1:28:36 AM

The First Amendment protects unpopular speech, but only from the government. This means the government can't arrest or imprison someone, or impose the legal system on them just for saying something the government (or someone in it) doesn't like.

A university isn't the government.

OU can expel whoever they want. These students weren't arrested or imprisoned, or beaten, or shot, or killed. They didn't have their constitutional rights violated.

Universities have expelled students and faculty for even minor infractions such as consumption of alcoholic beverages, drug use, cheating on exams, or sexual harassment.

There is no constitutional right to attend a university and behave however you want without consequences.

As a matter of fact, they can continue to spout whatever racist chants they want. Freedom of speech is alive and well.

Posted by: njim | Mar 11, 2015 11:13:05 PM

With all respect, I think you're question-begging there. Three circuits have held Tinker does apply to off-campus speech on the internet, a fourth has assumed it has, a fifth has held it does in at least some limited circumstances. Here's a nice blog post about it:

http://legalclips.nsba.org/2013/09/05/ninth-circuit-applies-tinker-off-campus-online-threat-of-school-violence-upholds-expulsion/

As far as the administration not knowing about it until a video was posted, seems irrelevant. Some circuits have required, for Tinker to apply to off-campus speech, that it be reasonably foreseeable that off-campus speech on the internet reach the school. Perhaps it wasn't reasonably foreseeable that anyone would record and post a video, though in 2015 it's not so unforeseeable either. What is definitely reasonably foreseeable is that news of these outlandishly racist chants would reach the university community in one way or another; there were, after all, a number of sorority girls on the bus, who presumably aren't members of a white supremacist gang and one or more of whom would reasonably be expected to share this information with their friends back on campus. Of course the administration didn't know of the off-campus speech until it was broadcasted on the internet and some non-speaker third party shared it with them, but that's true of pretty much all off-campus speech.

As to Oklahoma law, it's unclear; one 1981 Oklahoma case involving the University of Oklahoma cites Tinker for some points, see 638 P.2d at 1125-26, but it doesn't clearly hold that Tinker applies in college. In any case, I would think that the university would be able to remove the suit from state court.

Posted by: Asher | Mar 11, 2015 10:22:15 PM

If the speech is off-campus, and the administration did not even know about it until a video was posted, then there was no substantial disruption which would hacve placed the speech outside of the First Amendment.

(also, the two students could sue in state court. Does the Oklahoma Supreme Court apply Tinker to public universities?)

Posted by: Michael Ejercito | Mar 10, 2015 10:18:52 PM

http://www.lawyersgunsmoneyblog.com/2015/03/racist-fratboys-first-amendment

That's a liberal college professor supporting Prof. V. I'm with them.

And, I don't think CJ Roy Moore should be expelled either. :)

Posted by: Joe | Mar 10, 2015 6:04:47 PM

The statements cost OU a four-star football recruit. Isn't that disruptive enough to warrant expulsion?

Posted by: Kevin Jon Heller | Mar 10, 2015 5:49:45 PM

Well, Oklahoma's in the Tenth Circuit, and unlike some circuits the Tenth Circuit has held that Tinker, Hazelwood, etc. fully apply in college. See Axson-Flynn v. Johnson, 356 F.3d 1277, 1283-85 (10th Cir. 2004). Of course, it's not clear that Tinker applies to off-campus speech that's shared electronically on campus (by persons who aren't even the speaker) - I vaguely recall a big Third Circuit en banc opinion on that subject - and I believe these students made their remarks on a bus en route to an off-campus site (though they just might have still been on the campus when the recording was made). But, supposing Tinker applies, I think OU would have a solid argument that this speech was substantially disruptive.

Posted by: Asher | Mar 10, 2015 2:47:36 PM

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