NORMAN, Okla. — The University of Oklahoma’s decision to expel two fraternity members
who led a racist chant on a bus provoked criticism Wednesday from
several legal experts who said that the students’ words, however odious,
were protected by the First Amendment’s guarantee of freedom of speech.
“The
courts are very clear that hateful, racist speech is protected by the
First Amendment,” said Erwin Chemerinsky, a constitutional scholar and
dean of the law school at the University of California, Irvine.
Official
punishment for speech could be legal if the students’ chant constituted
a direct threat, leading a reasonable person to fear for his or her
safety, or if it seemed likely to provoke an immediate violent response,
according to Mr. Chemerinsky and several other legal scholars, liberal
and conservative alike.
But
in this case, these experts said, there is no evidence of any direct
threat or provocation, and as a publicly financed institution, the
university is subject to constitutional boundaries.
The University of Oklahoma has been in an uproar since videos surfaced
of members of the Sigma Alpha Epsilon fraternity chanting a song
Saturday night in which they used racial slurs to boast that they would
never accept an African-American member. The song also referred to
lynching, with the words “You can hang ’em from a tree.” The first video
was recorded as fraternity members and their dates rode a bus to a
formal event, was later posted online and was discovered and publicized
on Sunday by O.U. Unheard, a black student group.
On
Tuesday, the university’s president, David L. Boren, notified two
students that “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.”
Eugene
Volokh, a constitutional law expert at the University of California,
Los Angeles, and prominent legal blogger, wrote that “similar things
could be said about a vast range of other speech,” including praise for
Muslim groups like Hamas that call for destruction of Israel, which
could make Jews uncomfortable, or calls by black students for violent
resistance to white police officers, which white students could
interpret as hostile.
A
university spokesman said the students were told they could appeal to
the university’s equal opportunity officer. On Wednesday, Mr. Boren said
he was creating a vice president for diversity in his administration, a
position planned before the controversy over the chant. The vice
president will oversee all diversity programs, including admissions,
officials said. Mr. Boren was in talks to fill the post with an
African-American candidate.
Despite
the legal concerns expressed by many scholars, the university’s
handling of the incident — including the swift shutting of the Sigma
Alpha Epsilon chapter and its fraternity house and the expulsion of the
two students — has gained wide support on campus among black and white
students. Students interviewed Wednesday said they backed Mr. Boren’s
decision to expel the two, focusing in particular on the reference to
lynching.
“I
think what they said was not just offensive,” said Maggie Savage, 20, a
sophomore. “If you do anything to make students in a community feel
unsafe, you lose the privilege of being able to attend the university.”
One
of the two students expelled, Parker Rice, 19, a freshman, apologized
for his actions in a statement to The Associated Press. He wrote, “I
made a horrible mistake by joining into the singing and encouraging
others to do the same.”
In
the statement, Mr. Rice said his family members in Dallas were not able
to be in their home because of “threatening calls as well as
frightening talk on social media.”
The
parents of another Dallas-area student seen in the video, Levi Pettit,
issued an apology online. “We were as shocked and saddened by this news
as anyone,” read the statement from Brody and Susan Pettit. “Of course,
we are sad for our son — but more importantly, we apologize to the
community he has hurt.”
The
national office of Sigma Alpha Epsilon, in Evanston, Ill., said that it
planned to expel all members of the Oklahoma chapter from the national
organization and that it supported the university’s decision to expel
the two students.
Mr. Boren, in an interview Monday as he considered what action to take, said he was examining the relevance of Title VI of the Civil Rights Act of 1964,
which prohibits racial discrimination by agencies that receive federal
funds and, federal officials have said, forbids creation of a “racially
hostile environment” in schools.
But
Title VI is addressed to literal discrimination, and statements by
students in a private setting do not come near to violating it, said
Geoffrey R. Stone, a professor of law at the University of Chicago. A
university could discipline students for disrupting classes with
irrelevant or uncivil speech, Mr. Stone said, or otherwise disrupting
the operations of the school.
“But
it’s hard to make that case here,” he said of the Oklahoma situation.
“The statements were made in the innocuous setting of a bus, and any
disruption came from the showing of the video, not from the students’
speech,” Mr. Stone said.
In
a break with most legal experts, Daria Roithmayr, a law professor at
the University of Southern California who has written about the
interplay of law and racism, said that a plausible argument could be
made that the students’ action caused a “material disruption” in the
university’s educational mission and was not protected by the First
Amendment.
“The
entire university now has to repudiate the bigotry of a fraternity,”
she said, and for black students, “it’s a massive disruption.”
The
University of Oklahoma has a code of “rights and responsibilities”
prohibiting “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.”
Whether
the Saturday night chant amounted to such a violation, legal experts
said, the code could not take precedence over First Amendment rights.
Private
universities are not governed by the First Amendment, which applies to
governmental actions, and may generally have more leeway to expel or
otherwise punish students for speech. But most have codes of conduct and
disciplinary procedures that amount to contractual obligations, for
administrators and students.
A
dispute over punishment in a private university would be “a matter of
contract law, rather than constitutional law,” and might involve due
process of “fundamental fairness” rather than the First Amendment, said
John F. Banzhaf III, a professor of public interest law at George
Washington University Law School.
Manny Fernandez reported from Norman, and Erik Eckholm from New York.HI-
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Long Island Business News
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Home > LI Confidential > Stop scratching on holidays
Stop scratching on holidays
Published: June 1, 2012
Off Track Betting in New York State has been racing into a crisis called shrinking revenue. Some people have spitballed a solution: Don’t close on holidays.
New York State Racing Law bars racing on Christmas, Easter and Palm Sunday, and the state has ruled OTBs can’t handle action on those days, even though they could easily broadcast races from out of state.
“You should be able to bet whenever you want,” said Jackson Leeds, a Nassau OTB employee who makes an occasional bet. He added some irrefutable logic: “How is the business going to make money if you’re not open to take people’s bets?”
Elias Tsekerides, president of the Federation of Hellenic Societies of Greater New York, said OTB is open on Greek Orthodox Easter and Palm Sunday.
“I don’t want discrimination,” Tsekerides said. “They close for the Catholics, but open for the Greek Orthodox? It’s either open for all or not open.”
OTB officials have said they lose millions by closing on Palm Sunday alone, with tracks such as Gulfstream, Santa Anita, Turf Paradise and Hawthorne running.
One option: OTBs could just stay open and face the consequences. New York City OTB did just that back in 2003. The handle was about $1.5 million – and OTB was fined $5,000.
Easy money.
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