Although many believe the university has the authority to expel students for offensive speech, constraints by the First Amendment often prevent any action.
The students involved in the racist video that was circulated on Friday – identified by The Daily as Francie Ford and Olivia Urban – have withdrawn from the university, according to OU President James Gallogly. During the SAE incident in 2015 when former OU President David Boren issued an intent to expel two students, the students actually withdrew before the expulsion could take effect, OU legal counsel Anil Gollahalli said.
Gollahalli said in order for the university to be able to legally take action, the speech used in the video had to “affect the learning environment for people on campus,” or be threatening to campus, which were determined not to be present in the video.
“So, we were really very much limited in what we were able to do from a disciplinary standpoint,” Gollahalli said. “That's when we worked with the president to figure out what type of positive aspects we could make forward on.”
The university did have the authority to take action against two students in 2015, Gollahalli said, because SAE was an affiliated organization, the racist chant was taught within the pledge class specifically, the incident happened on a sponsored trip and there were references to lynching. The university also had “objective evidence” from phone calls and social media and others that people “truly felt a fear to be on campus,” so the learning environment was impacted, Gollahalli said.
“Given those circumstances, we felt that we had enough to move forward, regardless of the First Amendment because there’s obviously, like I said, certain speech that’s not protected,” Gollahalli said. “So an intent to expel was ultimately issued. My recollection is both students withdrew before that expulsion was able to take effect.”
According to Oklahoma State communications law professor Joey Senat, although the students’ language in this latest video is offensive, their First Amendment rights take precedence over any student code OU has in place.
“You can’t have a student code that violates someone’s constitutional rights,” Senat said. “They cannot require you to say, ‘Well, if you come to school you give up your rights.’ No – not at a public university.”
The video may violate Section II subsection 1 of OU’s 2017-2018 Student Rights and Responsibilities Code, which covers abusive conduct. The section is defined by the following:
Unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing, or humiliating. The frequency of the conduct, its severity, and whether it is threatening or humiliating are factors that will be considered in determining whether conduct is abusive. Abusive conduct includes verbal abuse, physical abuse, or holding a person against his or her will. Simple teasing, offhanded comments and isolated incidents (unless extremely serious) will not amount to abusive conduct.
Although the video would be considered hate speech and may violate the code, since it is non-threatening, Gollahalli said the university cannot take action without violating the students’ First Amendment rights.
“Hate speech – while vile and abhorrent – is still protected speech,” Gollahalli said. “There are very limited circumstances, but we're ... fully committed to protecting and expanding our student code to the limits of those boundaries as they may have been interpreted by the courts.”
Senat said he cautions students who want someone else censored, since then that same censorship can be used on them. He pointed to the case of a student who was sent home for wearing a Black Lives Matter hoodie two years ago in Deer Creek.
“What something is nebulous and hard to define as so-called ‘hate speech’ quickly becomes ‘Black Lives Matter is hateful and racist,’” Senat said. “I don’t agree with that, but there are plenty of white folks in this country who apparently do.”
Senat said that he would suggest students take action through counter-speech, since the university can technically not take any form of punishment toward the two students in the video.
“I understand why (students) are angry, I agree with them being angry, they should go protest in front of the sorority house, they should march in the streets and say why they think this is stupid, why this is wrong, why this was hateful, why they are hurt by that speech,” Senat said. “But that’s a big difference from having government step in and censor somebody, punish somebody for speech.”