Student Conduct Codes and Disciplinary Actions on the Basis of Racist Speech or Conduct: Does the First Amendment Protect the SAE Students from Expulsion from the University of Oklahoma?

The recent expulsion of two University of Oklahoma fraternity members who appeared in a video participating in a racist fraternity chant has generated a great deal of discussion amongst journalists and academics regarding the issue of whether the First Amendment protects a student's racist speech/conduct from expulsion from a public university.  Although many speech advocates have questioned whether the University's actions violate the First Amendment, as federal case law pertaining to public school disciplinary actions indicates, a defense of a student's racist statements as constitutionally protected may not be successful in a legal challenge to the University's decision should the students decide to appeal and/or litigate their expulsions.  

While we aren't privy to the strategy of the University's Legal Counsel, this language from President Boren's expulsion letter provides a clue about the legal basis upon which the University may be relying as grounds for the suspension:

"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."

The language referencing a "hostile educational environment" may indicate that the grounds upon which the University has based its expulsion is this provision of Section VI of the University of Oklahoma's Student Rights and Responsibilities Code (2014-2015), which includes this definition of "Abusive Conduct" prohibited by the Code:  

1.         Abusive conduct:  Unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.  These circumstances could include the frequency of the conduct, its severity, and whether it is threatening or humiliating.  This includes physically abusing a person or holding a person against his or her will.  Simple teasing, offhanded comments and isolated incidents (unless extremely serious) will not amount to abusive conduct.

The Code also includes this definition of "mental harassment" that could constitute grounds for suspension:  

13.       Mental harassment:  Intentional conduct that is so extreme and outrageous that a reasonable person would not tolerate it.

Assuming that the University's legal strategy does involve using the broad language in these rules, would such rules withstand First Amendment scrutiny?  There is certainly Supreme Court case law upon which the University - and other public schools - could rely to justify the language in student conduct codes prohibiting certain types of speech and/or conduct.  

The seminal case pertaining to student First Amendment rights is Tinker v. Des Moines Indep. City. Sch. Dist., 393 U.S. 503 (1969), in which the U.S. Supreme Court overturned a public school's suspensions of students for their silent protests of the Vietnam War by wearing black armbands to school.   Although the Court recognized that the students and teachers have First Amendment rights, the Court also held that special characteristics of a learning environment does create limitations on students' First Amendment rights.  The Court indicated that as long as a school can demonstrate evidence that the purpose of the rule prohibiting certain expression is necessary to limit conduct that would  "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," rather than to avoid mere discomfort or unpleasantness of an unpopular viewpoint, the rule could be sustained.  

In Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), the Supreme Court held that the First Amendment did not prevent a school district from disciplining a high school student for offensively lewd and indecent speech at a high school assembly as a violation of the district's "disruptive conduct rule" which prohibited "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures."  The Court indicated that students' speech rights can be outweighed by a public school's interest in teaching fundamental values of "habits and manners of civility" and stated "The undoubted dom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences." 

Some in the media have advanced arguments that because the racist chant - which included references to lynching - was not directed at particular students, that the chant did not constitute hate speech, and should therefore be considered protected by the First Amendment.  The University may be able to argue the holding in Morse v. Frederick, 551 U.S. 393 (2007), in which the Supreme Court upheld suspension of students who unfurled a banner advocating "BONG HiTS 4 JESUS" on the basis that the schools may take action against speech that promotes illegal drug use.  While the case is distinguishable on numerous grounds, e.g. that the activities in question occurred at a school-sanctioned event during normal school hours, involved high school students, advocacy of drug use, etc., the University could potentially advocate for a broader interpretation of the holding as grounds to justify suspensions on the basis that the chants could be construed to advocate violence and murder of African Americans - which is clearly more shocking and horrifying than drug use. 

These are just a few examples of U.S. Supreme Court case law upon which public schools, colleges, and universities can - and frequently do - build legal strategies to justify student conduct codes prohibiting certain speech or conduct.  Because the U.S. Supreme Court and other lower district courts have consistently recognized that the interests that public schools, colleges, and universities have in protecting the learning environment from disruption can outweigh student First Amendment rights, pundits should be advised against jumping to conclusions about whether or not the University of Oklahoma's actions in this case will survive legal challenge.  

Sources: 

The University of Oklahoma Student Rights and Responsibilities Code (2014-2015): http://www.ou.edu/content/dam/studentlife/documents/AllCampusStudentCode.pdf

March 10, 2015 Expulsion Letter:  http://ftpcontent.worldnow.com/griffin/NEWS9/PDF/0603/OUExpulsion.pdf

Tinker v. Des Moines Indep. City Sch. Dist., 393 U.S. 503 (1969): 

https://www.law.cornell.edu/supremecourt/text/393/503

Bethel School District No. 403 v. Frasier, 478 U.S. 675 (1986):

https://www.law.cornell.edu/supremecourt/text/478/675

Morse v. Frederick, 551 U.S. 393 (2007):  https://www.law.cornell.edu/supct/html/06-278.ZO.html

 

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