Fallout from racist Oklahoma frat may harm free speech and even private colleges

Fallout from racist Oklahoma frat may harm free speech and even private colleges
The home of the fraternity Rice belonged to, now shuttered

Recently, members of the Oklahoma chapter of the SAE fraternity were caught on video chanting a mind-bogglingly racist song that included “a line that suggests lynching blacks is preferable to admitting them in the fraternity.” Quite reasonably, the national fraternity “shut down the chapter.” More controversially, the University of Oklahoma (which, unlike the fraternity, is part of the government and thus constrained by the First Amendment) expelled two of the fraternity members.

“Most legal experts” consulted by the New York Times argued that the university’s action violated the First Amendment, including “several” law professors, “liberal and conservative alike,” such as UCLA’s Eugene Volokh and the University of Chicago’s Geoffrey Stone. “‘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.” (Professor Volokh’s legal analysis can be found at this link at the Washington Post web site).

But whether it ought to be protected is a different question than whether it is protected under existing First Amendment case law. Some commenters have argued that since private colleges can restrict shamefully malicious and hateful speech that contains no intellectual substance, perhaps public colleges should be able to do as well, to provide the same pleasant educational atmosphere. In “The OU Debacle and the Case for Private Institutions,” Reason’s Stephanie Slade notes that “private institutions are far freer to decide the best way to address situations like the one in Oklahoma,” in ways “aimed at producing the best possible learning environments, and far freer to change those arrangements when they fail.”

After all, public employers, unlike public universities, are given many (but not all) of the prerogatives of a private employer in terms of regulating speech to promote workplace efficiency, such as being allowed to generally punish rudeness, and to restrict speech that does not involve matters of public concern. By contrast, under existing First Amendment doctrine, public universities generally can’t do this. In Papish v. University of Missouri Curators (1973), the Supreme Court ruled that even “offensive” speech that violates basic “conventions of decency” is protected. In 1993, a federal appeals court overturned George Mason University’s discipline of a fraternity for a racist, sexist “ugly woman” skit and ruled that it was protected. The court rejected arguments that such speech could be banned to prevent a “hostile and distracting learning environment.” [See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993)]. And public universities can’t restrict speech merely because it does not involve a matter of public concern. See, e.g., Garcia v. State University of New York Health Sciences Center, 280 F.3d 98, 106 (2d Cir. 2001); Pinard v. Clatskanie (2006).

Unfortunately, the university president’s letter expelling the two fraternity members does not rely on any such voluntary, proprietary, or collegial rationale. Instead, it relies on a legally unsupportable rationale that is scary in its sweepingness, and implies that even a private college would be required to discipline students for racist speech even when it occurs off campus. It would create a massive regulatory headache for both private and public colleges alike if the courts in Oklahoma were to accept the university’s president dubious rationale.

In his letter expelling the two students, University President David Boren argued that their racist chant had created a “hostile educational environment” in violation of Title VI of the Civil Rights Act, which covers private and public colleges alike, and allows students to sue colleges for monetary damages for violations.

If the courts were to accept this rationale (which is a big “if”), that would be a radical expansion of Title VI liability, essentially jettisoning past limits on such “hostile environment” liability, and requiring colleges to regulate speech more broadly than in the past.  The appeals court with jurisdiction over the University of Oklahoma, the Tenth Circuit has made clear in cases such as Witt v. Roadway Express (1998) and Bolden v. PRC, Inc. (1995) that even using the N-word in the workplace is generally not enough to create a racially hostile environment when the hateful epithets are merely overheard or learned about second-hand, or when they are not repeated more than few times. Moreover, appeals court rulings like Lam v. University of Missouri (1997) have rejected sexual and racial harassment claims against schools based on individuals’ off-campus conduct – even serious misconduct like “assaults.”  Accepting the university president’s rationale that off-campus speech (like a racist chant on a bus that is leaked to the public) creates a hostile environment on campus would create severe free speech and privacy problems, since colleges would be required to meddle in people’s private lives to avoid damages liability under Title VI.

Even core political speech and academic debate can in some cases create a hostile environment, not just intellectually worthless speech like the Oklahoma fraternity’s vile racist chant. For example, in Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010), a federal appeals court had to rely on the First Amendment to quash a racial harassment suit against a professor for sending anti-immigration emails, which a college’s Hispanic faculty claimed created a hostile work environment in violation of Title VII of the Civil Rights Act and 42 U.S.C 1983. As UCLA’s Eugene Volokh notes, hostile-environment regulations can already reach a variety of core political speech.

Courts may well be tempted to adopt the University of Oklahoma’s rationale, due to utter disgust with the fraternity (a national poll shows the public overwhelmingly supports the fraternity members’ expulsion). Thus, future litigation over the fraternity’s discipline (it is already suggesting it might possibly sue) may end up setting a bad precedent for private and public colleges alike, if judges twist the law out of distaste for the fraternity, resulting in expanded Title VI liability for private colleges as well.

But the courts should reject the University of Oklahoma’s invitation to stretch the concept of a hostile environment even further, in light of the canon of constitutional doubts, which instructs courts to interpret statutes narrowly to avoid even potential constitutional problems. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 574-575 (1988) (construing National Labor Relations Act narrowly to avoid potential free-speech problems, despite the broad deference that the NLRB’s interpretation usually gets); Miller v. Johnson, 515 U. S. 900, 923 (1995) (rejecting Justice Department’s broad interpretation of a civil-rights law); cf. Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) (voiding as unconstitutionally overbroad a school district’s hostile-environment harassment policy that defined hostile environments more broadly than the Supreme Court’s Davis decision had done); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (voiding college’s hostile-environment racial harassment policy as overbroad); UWM Post, Inc. v. Board of Regents of University of Wisconsin System, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991) (striking down hostile-environment racial and sexual harassment policy that went beyond banning fighting words; “since Title VII is only a statute, it cannot supersede the requirements of the First Amendment”).

This does not mean that courts should stop the University of Oklahoma from inquiring into the fraternity’s lamentable mindset, to see whether it resulted in tangible discrimination.  For example, Professor Volokh notes that the racist chant might have been “evidence of discriminatory decisionmaking by the fraternity in admitting members. A university may demand that groups to which it provides various benefits not discriminate in admissions…. The university might thus be able to discipline students who (a) are involved in a fraternity’s admissions decisions, and (b) can be shown to have denied membership to people based on race, or intentionally tried to communicate to potential members that they would deny them membership that way.” But the university president’s letter does not rely on any such rationale, and no such fact-finding seems to have occurred prior to its hasty issuance (which thus raised both free speech and due process concerns).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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