WASHINGTON, D.C. (March 10, 2015): David Boren, the President of Oklahoma University [OU] says his institution has zero tolerance for racism, but it also appears that he has zero tolerance for – or perhaps a severe misunderstanding of – fundamental constitutional rights.
Numerous clear Supreme Court decisions under the First Amendment seemingly makes it illegal for him to summarily dismiss or even otherwise discipline students for statements however racist, especially when made in private, says public interest law professor John Banzhaf.
Courts has held time and again that speech which is abhorrent – including because it is racist or sexist – is constitutionally protected, whether uttered by an individual or even by a fraternity.
Indeed, notes Banzhaf, it is speech which is absolutely abhorrent, and at odds with universally accepted truths and standards, which is most in need of protection under the Constitution. “Statements or songs in favor of apple pie and motherhood rarely if ever need legal protection,” he notes.
The fact that the Oklahoma University racist song some fraternity members sung contained the word “hang” doesn’t make the president’s punitive actions any more constitutional, since the idea that the singing on a bus created a clear and present danger to anyone is rather farfetched, especially since the words were sung in private, as they apparently had been many times before.
Even if a Oklahoma University student posted a statement on his blog seriously advocating that African Americans – or women or law professors – should be lynched, it would hardly create a clear and present danger.
Oklahoma University: The song sung by SAE student
A song sung on a bus including the words “There will never be a n*gger at SAE; You can hang him from a tree; But he’ll never sign with me” doesn’t create any real danger of action since it appears that nobody on the bus was Black, and certainly there were no Blacks on the bus who had tried to join SAE.
All of the members of SAE – presumably including some who had not joined in the singing, or at least cannot be proven to have joined in the singing – were reportedly ordered to leave their dwellings and take all their things with them immediately.
But, notes Banzhaf, most jurisdictions have laws which prohibit people from being summarily ousted from their dwellings, especially without any real notice, any hearing, not any judicial involvement.
So the Oklahoma University President may well be in violation of these laws, as well as the Constitution, suggests Banzhaf, noting that both universities, and individuals on campus who were involved, may be held liable for monetary damages as well as attorney fees. Banzhaf is not alone in arguing that the President’s actions are unconstitutional. The same conclusions have been reached by Competitive Enterprise Institute’s Hans Bader, The Washington Post’s Eugene Volokh, and the Foundation for Individual Rights in Education.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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