Largest newspaper in Ohio: editorial on OU fraternity's racist song

[Yonx]

March 18, 2015
Cleveland Plain Dealer

"Let us stipulate that there is no defense possible for the vile lyrics of the song, nor for the unmistakable spirit of ribald celebration that was evident in the crowd as it was being sung -- and none is offered here. It is frankly difficult to absorb this latest evidence that such echoes of America's dark racist past are still at work in today's society, and we fully understand President Boren's anger and revulsion.

Inconveniently, however, the U.S. Constitution's First Amendment makes no exception for taste, civility or decorum in the types of free speech it protects. And satisfying though it may have been to lash out at the participants, Boren was overstepping legal bounds in booting them out of school.

The weight of Supreme Court decisions stands against expulsion. The Court has consistently defended such loathsome acts as defiling the U.S. flag, marches by such groups as the Nazi party and the KKK, and public pornography. In an on-point 1972 decision (Healy v. James), the Court specified that "state universities are not enclaves immune from the First Amendment."

The First Amendment does not protect specific threats of violence, and some have pointed to a line in the song: "You can hang him from a tree ..." But disgusting as that is, the line does not, in our estimation, constitute a real threat against an identifiable individual or group."

http://www.cleveland.com/opinion/index.ssf/2015/03/oklahoma_students_hateful_sing.html

I personally condemn this defense of racism by this newspaper. Please contact them and tell them there is no room for racists in our universities and society.

[Yo_Mama]

1. But they are right legally.

Since Brandenburg, they are right. And they are not defending the sentiments.

http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

The university had every legal right to shut down the fraternity, but it appears that it did not have the right to expel individuals. I don't think those expelled will want to sustain their disgrace by suing over it, but still the editorial is correct.

[KamaAina]

3. They were expelled not for the speech, but for violating the OU code of conduct.

It may seem like a distinction without a difference, but that's the law for you.

[Yo_Mama]

4. Yes, but the government may not set up a code of conduct that removes free speech rights

so far according to legal precedent.

Now in the unlikely case that this ever gets to court, we may get a new precedent.

ACLU:
https://www.aclu.org/free-speech/hate-speech-campus

Bunch of case citations at this link:
http://www.thefire.org/in-court/state-of-the-law-speech-codes/

[Rex]

5. There is no reason for it to go to court, they violated the rules they signed an agreement to follow

so the Dean had every right to expel the students.

Has nothing to do with the government and everything to do with signing a contract. Every college has a 'code of conduct' that is mandatory to follow while being a student at that facility. Doesn't matter if they are private or public, to pretend this is the government denying free speech is not a winnable court case.

Either people don't understand binding contracts or they just pretend to not know about them or they don't know about them.

[Yo_Mama]

8. If you read my prior links, you'll see that's precisely what the courts have been invalidating

Especially the second link - that has a bunch of highly relevant cases. The latest ones are furthest down on the list.

Government universities are not private entities. OU is a public university: http://www.opuac.org/

DU is free to throw me out for insisting that legal precedent means something, but DU is not a government. States are subject to most of the Bill of Rights according to the SC, and so are government agencies of the states, and OU is a part of the government.

I do sort of intuitively feel that this behavior was so extreme that they ought to be able to expel them, but that's not legally true based on the precedents.

[COLGATE4]

9. You don't waive your Constitutional rights by

signing a contract to enter a college. And the rules set by the college can't trump your constitutional rights, either. See: Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) and Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973). The cite means that they are cases decided by the Supreme Court, thus their holdings are the law of the land.

[arcane1]

2. "defense of racism"?

[Rex]

6. It's an opinion in a newspaper BFD. Won't change one fact in this case.

Students that violate the code of conduct can be expelled. Funny how the racists forget all about contracts and agreements when it is convenient to do so.

[hifiguy]

7. Constitutionally, that editorial is 100% correct.

Were I a prof and that a hypothetical question in an exam I gave, the writer would get an A.

There is not one thing in that editorial to qualify or apologize for. Not a one.

[COLGATE4]

10. Excellent post. Confirms what some of us

have been saying.