Oklahoma University President Himself Can Be Sued Over SAE Punishments

WASHINGTON, D.C.  (March 11, 2015):  Many SAE students who have been adversely affected by the decisions of Oklahoma University’s President David Boren, in response to a racist song sung in private on a bus, could sue not only the university but also its president in his individual capacity, and there is ample legal precedent for such suits, says public interest law professor John Banzhaf.

Oklahoma University President Himself Can Be Sued Over SAE Punishments

Oklahoma University: Violation of rights to Free Speech

There are many legal grounds upon which law suits, some seeking not only damages but also payment of attorney fees, could be brought. These include violation of rights to Free Speech under the U.S. Constitution, violation of their rights to Due Process also guaranteed by the Constitution, violation of the procedural protections guaranteed by the university’s own “Student Rights and Responsibilities Code,” and legal action under any local laws protecting people from summary evictions for their places of dwelling.

Virtually all legal authorities who have spoken out agree that a state school cannot expel students for even racist or hateful statements – “there is no hate speech exception of the U.S. Constitution” – even if they mentions lynching, especially if the speech occurred in private.

It’s also clear that, under the Due Process clause, students cannot be suspended or expelled for even ten days – much less permanently – without some kind of hearing.  For such violations of fundamental constitutional rights, the law provides that those injured by the violations can sue both the institution and any responsible individuals in federal court, and may recover not only damages but also attorney fees.

Oklahoma University student rights code

The Oklahoma University student rights code also contains guarantees, not only related to academic freedom and freedom of expression generally, but also the right to notice and a hearing which wasn’t provided.

Many courts have said that such language constitutes a binding agreement on behalf of the university – a contract between it and each student – and that violation can likewise create legal liability.

Finally, most states and local governments have laws which provide legal protection against people being summarily evicted from their dwellings, and these would probably provide an additional cause of legal action.  This is particularly true of the many brothers who were not even on the bus, and were completely unaware for what occurred. These students, and any on the bus who did not participate in the singing, have been thrown out onto the street with their belongings despite their lack of any culpability.

There are several legal precedents, notes Banzhaf. For example, a former Valdosta State University student had been dismissed because the president found that a collage of pictures posted on his Facebook page was a “threatening document” which presented “a clear and present danger to this campus.”

Oklahoma University: Federal court judge ruling

A federal court judge ruled that the president had acted unconstitutionally, and held him personally liable for damages.  The judge also ruled that the state’s Board of Regents violated a contract between the student and the board created by the school’s published statements.

In another case, George Mason University punished an entire fraternity for putting on a public “ugly woman contest” which was allegedly sexist and racist.  Without even a trial, a federal judge nullified the sanctions, and the court of appeals affirmed, saying songs and even skits are protected Free Speech.

It’s important to note, says Banzhaf, that both of these cases involved clearly public speech designed to be heard by others who might be offended or even threatened.  In the SAE case, the speech was obviously intended to be private, and not to be publicized to anyone who might be adversely affected by the sentiments expressed.  If any places should protect free speech, it should be colleges, says Banzhaf.

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)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf

  • bcmugger

    Its true.

  • bcmugger

    You seem to be the racist.

  • bcmugger

    You sound more the racist than the students do.

  • Prince Albert

    So -bottom line is you are a Racist.

  • wsurfs .

    Completely Irrational….excessive and careless decision making on the part of the university and it’s president. The university president and the university will be sued..!

  • wsurfs .

    The president’s actions were illegal..! You sound like a bigot and racist yourself..!

  • wsurfs .

    America’s values and morals are completely screwed up, aren’t they? The “good news” (if you can call it that) is that these boys definitely had their Constitutional rights violated and will sue because of it..!! After they sue, the president of the university and the university and the National SAE chapter they will get some BIG BUCKS and send a clear message that we still have a Constitution in the USA..!!

  • wsurfs .

    If racists behavior is not “welcome” at the University of Oklahoma, what are YOU still doing there..?? You’ve got something against rich white boys….you know the ones you just CALLED “little rich kids and little bigots”…….DON’T YOU?? YOU sound like the racists..!! BE CAREFUL..!! YOU could be next to have your own rights violated..!

  • wsurfs .

    The SAE boys committed no CRIMES..!! Boren had no right to throw them out..!! FREE SPEECH is guaranteed by the USConstitution..! PERIOD..!

  • wsurfs .

    If the university wouldn’t have acted so excessively and carelessly, he would have saved himself some BIG BUCKS down the road…He will be sued for this and lose..! Beron is the disgrace…not these SAE boys…they committed no CRIME…violated nobody’s Constitutional Rights….!! They are the injured party here…..possibly for life…!!

  • Seriously?

    No, Mac, I didn’t say that. Now that I read it again, though, it is a little confusing. All I was saying was that the university president was in a lose/lose situation. In today’s societal climate, for his sake and the university’s, he needed to act quickly lest he be perceived as doing nothing or at the very least dragging his feet on a racial issue. The press would indeed have had a field day with that. Instead, he chose to address the situation quickly and severely. That decision was applauded by a great many people. If he had convened a hearing or held an investigation or done anything that took very much time, he would have been seen as favoring the privileged, elite fraternity members. People would have criticized him saying that he was just going through the motions and that the boys were just going to be let off the hook in the end. Did he make the right decision? Maybe, maybe not, but at least he acted quickly and in what he believed to be the best interest of the university.

  • Mac

    So the university president should govern his actions not by the U.S Constitution but by whether people would still be griping.

  • Seriously?

    If the university president had done nothing immediate, if he had chosen to investigate first, then everyone criticizing him now would still be griping, saying that he and the university condoned this type of behavior because they didn’t act quickly enough. At least with his actions, he showed that racists are not welcome at the University of Oklahoma. If the little rich kids sue and even if they win, at least he made it clear that the university would not tolerate that behavior. How ironic it would be for the liberal courts to send these little bigots back to school!

  • Whoop93

    There are numerous articles and editorials plastered all over this website about this incident (a few stupid college boys singing a song on a bus). These articles talk about what a horrible crime this was and, how many people are going to be fired, expelled, and sued because of it. There are articles that talk about how racist and bigoted “white” people are because of this song that was sung by a few college boys on a bus. There are articles that defend, justify, and even salute the racist, vicious, bigoted, sexist, vulgar rap music filth that is common in the “black” culture. Meanwhile, two police officers were ambushed shortly after midnight last night in Ferguson, Missouri. No big deal. This insignificant little incident was mentioned briefly earlier today before it was removed from the website. Obviously attempted murder of two police officers is not near as horrible a crime as a few college boys singing an “offensive” song on a bus.

  • cherkassy05

    Got English??

  • dhartm2

    Him loving it is fine, I’m sure he’ll find another job cooking. But “we have a black cook” isn’t an excuse for that despicable chant.

  • Trbig

    I’d heard two have been expelled permanently and some temporarily, but it is unclear whether the two permanents were expelled or voluntarily left. Either way, I think this incident will be played out in the courts.

  • Trbig

    Yeah, I’d read that also and I hope he’s taken care of, but if you watch his interview, he LOVED doing what he did and it’s a shame that was taken away from him through no fault of his own. I know it sounds cliche’, but money really isn’t everything.

  • Trbig

    Way to lump everyone together and make blanket statements, Marsha. Unfortunately, your (and my.. even though I live in Oklahoma and my son went to OU) hatred of what they say doesn’t trump their Constitutional rights. As stated in the story, “there is no hate speech exception of the U.S. Constitution”, no matter how much we may disagree with what’s said. It’s much like a situation with that Westburough Baptist “Church”. I hate what they say and stand for, but they still have a right to their ignorance, just as you do about your “bigots and racist on Capitol Hill” jab.

  • Marsha Hubbard Keith

    The bus was full and no one tried to stop the chant, the women had the guys testosterone going by clapping and smiling while all the under age bigots and racist drank alcohol which is illegal to btw. Social fraternity bull social KKK club more like it or social bigoted and racist club more like it. The whole bus needed to be expelled or disciplined and Oklahoma has enough bigots and racist on Capitol Hill we do not need them on our campuses

  • Marsha Hubbard Keith

    One more question booze on the bus is that not underage drinking and against the law. I believe it is called minor in possession of alcohol and is a crime so bust the whole bus, the bus driver and any other adult who allowed alcohol on the bus

  • Marsha Hubbard Keith

    So the bigots and racist do not like being called bigots and racist. I would love the name of every one in that house so I can call them what they are bigots and racist as I am practicing my “freedom of speech” and the President of the University was right in his actions. Social fraternities and sororities are a breeding ground for discrimination, racism, and bigotry it seems- Now do not get wound up as I will say some are good and fair but that number is limited it seems. But the President of this University who I am no fan of and am from Oklahoma did the right thing here. This was not freedom of speech it was hate talk, bigotry and racism at its utmost level. So can they had to move out of the house good and better yet all of them out of the university and state we have enough bigots and racist on capitol hill we do not need junior KKK racist and bigots on our University grounds

  • dhartm2

    “Isn’t there a law in OK that would require that the Fraternity have
    approved the filming of the chant since it was on a PRIVATE bus?”


  • RatRef

    Procedures and rules to be followed? You mean this school president can not act arbitrarily with prosecutorial discretion???

  • dhartm2

    Someone started an online fundraising effort for the cook which is currently over $62k with 27 days left. He is going to be the beneficiary of some very karmic justice. Shoot, if the fund keeps on this pace, he’ll be ready to retire.

  • Tessalouise

    I don’t recall millions, not a few…MILLIONS of African-Americans lining up to sue the federal and state and local city governments for true pain and suffering due to all said government bodies violating, not just free speech rights, but beating them in the streets, refusing them the vote, not paying minimum wages, not registering them in the social security system, etc., etc., etc. for hundreds of years!

  • Louie Kiskowski

    You actually can blame the entire fraternity and kick them off campus, but not the individual students whose speech is protected. SAE goes, the kids stay.

  • wolfymlm

    Isn’t there a law in OK that would require that the Fraternity have approved the filming of the chant since it was on a PRIVATE bus? Along with the lack of due process and the rapid bullying of the whole fraternity by the Administration and press. this seems fairly irrational considering it is a bunch of teenagers and drunk 20 somethings.

  • fake_smile

    Scene from the movie ” Scent of a woman”……. be careful what kind of leaders you are producing here………….

    All these kids are seeking an education. what kind of education are they getting? or, what kind of education are they being influenced to get?

  • BunnyRabbit

    Keeping a kid after school is kidnapping and false imprisionment.

  • Zinga

    I wonder how the administrators feel now that the shoe is on their foot. Administrators, increasingly have no regular faculty experience. They are promoted to top heavy salaried position through personal networking. They have started to change the culture of universities to create a business model where the student is the customer and the customer is never wrong. Hard to educate and give grades in that environment. Faculty are punished if they are rigorous and so we have grade inflation like crazy. Administrators don’t want to be bothered. They almost always side with the students when students complain about a grade or something about a faculty member and we are evaluated by students, many of whom whine and cry like we are stabbing them with hot pokers if we ask them to read a book or write more than 5 consecutive sentences. The vast majority have never taught yet they evaluate us. Welcome to the world you guys created. The inmates are running the asylum. Problem is, you screwed this up massively and the university budget is going to get hammered taking scares resources away from all the rest of us to defend your incompetence. Throwing innocent kids out of their housing in the middle of a semester is total knee-jerk stupidity. You’ve embraced (literally) and promoted “Greek life” on campus and now it has come back on you.

  • Trbig

    SAE “Honorary” alum Barry Switzer also stated the school/admin may have jumped the gun on a blanket punishment for the whole chapter, and about 90% of the comments were telling him to STFU. I happen to have agreed with him.. how can you punish a whole sorority for a few idiots on a bus? Even the person filming it obviously did so because they disagreed with the chant.. and yet even they got punished. The sorority cook of 15 years, who was a black man, lost his job.
    Look, I absolutely HATE what they were chanting in the video, but I didn’t fight for the rights of people to say only the things I agree with. Political Correctness is killing this country.

  • webster miller

    Apparently our universities are more concerned about removing the US flag from their campuses.

  • Robert Johnson

    But! But! But! your honor! these black people will kill us and rape our women!