March 13, 2015 Practice Points

Balancing the First Amendment and Anti-Hate Lessons on College Campuses

By Janice Arellano

In early March 2015, the University of Oklahoma expelled students who were members of the fraternity, Sigma Alpha Epsilon (SAE). The student members were noted as chanting racial epithets and videotaped by other peers on a bus headed to a party to celebrate Founder's Day at the school. The racial epithets seemed to target the Black community. The Sigma Alpha Epsilon leadership wrote a response noting, "[We] have started proceedings for all suspended members of the University of Oklahoma chapter to expel them from the national organization, which will revoke their membership permanently. At the same time, the headquarters has learned of the expulsion of two chapter members from the university, which we support. Although university officials have not communicated directly with headquarters staff or leadership, we believe that these men must be held responsible for their actions."

From a constitutional standpoint, racist speech is arguably protected. Eugene Volokh writes, "students will be affected in their social lives and their professional lives…but under the First Amendment, though, the government—including the University of Oklahoma—generally cannot add to this price, whether the offensive speech is racist, religiously bigoted, pro-revolutionary, or expressive of any other viewpoint, however repugnant it might be." Thus, Volokh argues that the school cannot expel the students for their speech because this student speech was outside the classroom and outside academic assignments. Furthermore, on this particular occasion the student speech did not incite fights or promote imminent unlawful conduct. However, David L. Boren, the university's president, noted that the chanting "created a hostile learning environment for others." It may be the case that the university is enforcing the legal requirement of a nonhostile environment by barring racially hostile conduct. Unfortunately, even in the country's public institutions, where the nation's future leaders are being prepped for purposeful membership in society and the workforce, racist speech and conduct continues to persist. Perhaps colleges and universities are the only place in which students should be given the utmost freedom to engage in any speech that does not incite violence because ultimately college campuses are the beacons of academic freedom and freedom of expression.

Many colleges continue to struggle in helping shape its school climate to be more inclusive and embrace diversity. Particularly with college groups and organizations, such as fraternities and sororities, many chapters have displayed disturbing behavior and have faced the consequences for hosting racially-themed parties. For decades, college and universities have been under pressure to respond to the concerns of those who are the objects of hate, often directed at people of color and LGBTQ students, to adopt campus-wide policies policing speech that offends any group based on race, national origin, or sexual orientation.

No matter how morally wrong and outdated racist speech, public colleges and universities must be careful not to engage it what would be construed as government censorship, thereby violating the U.S. Constitution. Moving forward, college administrators must work harder to raise awareness relating to any actions of bigotry and not be afraid to engage in campus-wide dialogues and include in their curriculum ways to inform students about historical institutionalized racism. Perhaps at a time where on its face our nation is a post-racial society, with our nation's president being of mixed race and African heritage, the pillars of academic freedom, such as colleges and universities, should revisit their agendas by helping shape our nation's future leaders—not to dole out quick-fix punishment such as expulsion, but rather to teach the lessons within their control in the academic setting.

Keywords: minority trial, litigation, racism, Sigma Alpha Epsilon, University of Oklahoma

Janice Arellano is a law clerk for the Superior Court of New Jersey in Somerset, New Jersey.


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