Excepting Expulsion of the SAE Students at the University of Oklahoma

Background

On March 10, 2015, two members of the University of Oklahoma chapter of the Sigma Alpha Epsilon fraternity were expelled after being caught on video on their way to a fraternity event leading the following chant, set to the tune of “If You’re Happy and You Know It:”

There will never be a n----r in SAE

There will never be a n----r in SAE

You can hang him from a tree

But he'll never sign with me

There will never be a n----r in SAE

Almost immediately following the students’ expulsion came a chorus of legal experts sounding Boren’s violation of the students’ First Amendment rights. Indeed, the case law seems to weigh in the students’ favor. In Healy v. James, 408 U.S. 169 (1972), the Supreme Court declared that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” Id., at 180, and upheld this notion a year later in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973). However, the Court designated a few forms of speech to be within a university’s power to discipline, one of which being that student activities “need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education,” Healy, at 189. In light of this exception, along with a contextual reading of the holding cases regarding university student speech, Healy and Papish, I propose, in spite of what appears to be an oppositional precedent, that the University of Oklahoma might be able to justify the expulsion of two of its students.

The Healy Exception

In Healy, the Court noted that a college’s refusal to acknowledge a student group because of its speech-related activities could be justified if the group did not comply with “reasonable regulations with respect to the time, place and manner in which student groups conduct their speech-related activities,” Id., at 192-3.

What counts as a reasonable campus regulation appears to be left fairly open in Healy, but it would be hard to imagine that a court would find the University of Oklahoma’s policies against abusive conduct and mental harassment unreasonable. What is left then is a determination of whether the time, place and manner was inappropriate for such speech. This is an issue addressed by Papish, in which a student was expelled for distributing a campus newspaper containing indecent speech, which included the phrase “M—f—“ and illustrations of a policeman raping the Statue of Liberty and the Goddess of Justice. The court noted that “in the absence of any disruption of campus order or interference with the rights of others, the sole issue was whether a state university could proscribe this form of expression,” Id., at 670. Indeed, the student’s speech posed no threat to the rights of others in Papish, and the Court ruled in her favor. However, I would argue that the speech of the SAE students is different—it does indeed interfere with the rights of others. It was performed at a student organization’s event, targeting a vulnerable class of people with the intent of exclusion, using abusive and harassing language. Further, it was performed as a chorus; it was rehearsed, indicating its pervasive nature and if, through discovery, the University of Oklahoma can show that the students it expelled participated in the promulgation of such abusive language, which interferes with the rights of black students by creating a culture of exclusion from a campus group, they may have a case for themselves that conforms to standards set by Healy and Papish.

A Contextual Approach

In Healy, a state college denied official recognition of a campus group called Students for a Democratic Society (SDS); the president of the college refused acknowledgement of the organization based on his belief that they were affiliated with the National SDS and would thus participate in activities that were antithetical to school policies (the National SDS was a radical left student organization that led acts civil disobedience on some campuses). The Court noted that the administration failed to meet its burden of justifying its nonrecognition of the group because 1) the group denied affiliation with the National SDS and 2) even if there were an affiliation, the president could not deny recognition merely because its philosophies were “counter to the official policy of the college,” Id., at 187.

Chief Justice Burger recognized in his concurring opinion in Healy that “student organizations seeking…campus recognition must be willing to abide by valid rules of the institution,” and further, that he remanded because he was “troubled by the lack of a comprehensive procedural scheme that would inform students of…[how] to secure recognized standing,” Id., at 195. This notion is echoed in Justice Rehnquist’s dissenting opinion (in which Burger and Blackmun joined) in Papish, in which he distinguishes that case from Healy on the grounds that the latter case was one in which the university had “not afforded adequate notice and hearing of the action it proposed,” Id., at 673. Thus, more than one justice in Healy went out of his way to emphasize the procedural nature of that case and the deference to be given to the rules of the institution.

Justice Douglas, in his concurring opinion in Healy, laments the latent conservatism behind the school’s decision not to recognize the SDS, citing the then-recent effects of McCarthyism? , noting, “If we are to become an integrated, adult society, rather than a stubborn status quo…students and faculties should have communal interests in which each age learns from the other. Without ferment…a college…becomes a useless appendage to a society which traditionally has reflected the spirit of rebellion,” Id., at 197. Speech like that of the SAE students’ could hardly be thought to be the kind of speech he spoke of then.

Conclusion

We need not fear that upholding the University of Oklahoma’s decision to expel two students for their flagrantly abusive speech that targeted a protected class will result in a slippery slope downward into a university being able to discipline students for any speech it finds offensive. We can and should be able to delineate the forms of speech on campuses that interfere with the rights of others and seek to reel back social progress. Perhaps an elaboration of the standards for reasonable campus rules will be necessary, but I think it is in keeping with the spirit of Healy that the interest in maintaining a learning environment that is safe for everyone at public schools1 outweighs any interest in preserving the cruel and privileged speech of the few.

1. I think it is also important to keep in mind the rather tenuous connection between the standards set by cases dealing with the imposition of criminal sanctions for speech and school sanctions, as Justice Rehnquist notes in his concurring opinion to Healy: “There can be a constitutional distinction between the infliction of criminal punishment, on the one hand, and the imposition of milder administrative or disciplinary sanctions, on the other,” Id., at 203.