The New Republic also has a piece on whether it’s constitutional for the University of Oklahoma to expel the two frat boys who led the racist chant on the bus. Of course it does; the New Republic is the National Review for people who think they’re on the left.
[A]s UCLA School of Law professor Eugene Volokh noted shortly before Boren’s announcement, a public university student has a right to express himself without being expelled—even if that expression is a virulent, racist chant. “First, racist speech is constitutionally protected, just as is expression of other contemptible ideas,” Volokh wrote. “And universities may not discipline students based on their speech.”
Public universities, that is.
Yes, and note that that’s not what Volokh noted; he left out the “public” part.
In 1972, the Supreme Court made clear that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” and a year later the court reaffirmed that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of conventions of decency.” That case, Papish v. University of Missouri Curators, involved a set of facts relevant to the Oklahoma case: Expulsion of a graduate journalism student who was sanctioned for handing out a newspaper “containing indecent forms of speech.”
Yes but “indecent” isn’t the issue. The problem with racism and with racist bullying is not that it’s “indecent” but that it’s harmful. That doesn’t automatically mean the First Amendment doesn’t apply, obviously, but it clutters up the issue to imply it has to do with what’s “indecent” (or “offensive,” which is a completely useless word for trying to think clearly about this subject).
Noting that a public university can reasonably regulate “the time, place, and manner of speech and its dissemination,” the court ultimately ruled that a student cannot be “expelled because of the disapproved content of the newspaper,” and ordered the student reinstated.
Of course, there are exceptions to this rule: when the offensive speech represents a “true threat” to the listener, or if the words had somehow been used to pick a fight or to incite others to violence. None of that seems to be the case here, as the chant appears to have been sung while on a school trip and not directed to a particular audience.
And therefore it was sealed off in an airtight bubble where it would have had no effect whatsoever on how the members of that fraternity interacted with non-white people at the university. And I’m Marie of Romania.
Why do people have to be so simple-minded about this stuff? Why do they have to pretend that if it’s not “I’m going to lynch you!!” screamed directly into the face of one person, it’s nothing at all?
The school, for its part, seems to have anchored the expulsion on the notion that the students created a “hostile educational environment” for everyone else with their “racist and exclusionary chant.” But where does such hostility and exclusion begin and end?
Gosh, I don’t know, therefore let’s throw up our hands and just let god take care of it.