Rotten Fish and the First Amendment

skepticMy reaction was pretty typical to the recent scandal about the racist slogans chanted by members of the Sigma Alpha Epsilon (SAE) fraternity at Oklahoma University (OU) at Norman and the companion video of the SAE house-mother repeating a racist slur: kick them out of OU, fire the house-mother, and dissolve the fraternity immediately. At that point, I was -- I freely admit -- feeling with my glands instead of reasoning with my brain. So I began to use the latter to think the issue through more dispassionately from a constitutional and First Amendment standpoint.  In the end, my glands were vindicated ... sort of:  my original reaction was right, just for the wrong reasons.

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Regarding the recitation of the racist chant on the bus, there are two broad possibilities, each with somewhat different free-speech implications. Details leading up to the bus trip and the chant are difficult to come by. So I consider the two main possibilities briefly below:

o The bus trip was underwritten by OU for an OU-related and –approved function, and subsidized – perhaps paid for entirely – with OU funds

 As a university, especially a state-supported university, OU is in the business of providing an environment where people are free to come, learn, debate, discuss, and freely express their individual opinions – consistent with maintaining the overarching purpose of the university of promoting free inquiry. But OU has a compelling interest in (a) not allowing expression of opinions and sentiments inconsistent with the free-inquiry goals of the institution, and also in (b) not allowing those expressions of opinion and sentiment to foster a belief – however erroneous – that the University approves of, and least of all that it subsidizes, such inconsistent expressions. As St. Paul said in I Thess. 5:22, OU must "abstain from all appearance of evil". (In fact, this is a case in point of John Milton’s position in Areopagitica: a society is obligated to tolerate a robust spectrum of opinions – but not to the point of tolerating opinions that are themselves intolerant.) Even so, students have First Amendment rights – but they do not have a right to expect the University to subsidize the expression of opinions inconsistent with OU’s purpose as an academic institution (i.e., opinions of type (a) or (b)). Expressing such opinions / sentiments is something students must do “on their own dime” – which means not doing so “on the taxpaying public’s dime”. In this case, expelling the students is entirely appropriate. Whether they intended to do so or not, in this case, the chanters placed themselves in the position of working toward a purpose diametrically opposite to that of OU as a whole, something the University is under no obligation to subsidize by “paying the freight”. Again irrespective of intent, by chanting "There will never be a ... in SAE," the bus-chanters had already separated themselves from OU.  Their formal expulsion merely recognized that fact. The paperwork simply caught up with reality.

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o The bus trip was privately funded, the function was privately arranged and not connected with OU or any OU gathering or celebration

 Again, the key question here is whether the university has a compelling interest in disciplining the students for the racist chant. If the chant had read “There will never be a … in OU”, then – even on a privately funded trip – OU would be justified in exercising some kind of discipline against the chanters. In fact, in this hypothetical case, who paid for what would be irrelevant: the racist students would still be working at cross-purposes with OU as a publicly funded academic institution. But the chant, in fact, read “There will never be a … in SAE”. So in the incident as it actually occurred, the answer to the question depends on how one conceives of the relationship between SAE and OU. This is tricky, in large measure because it raises two issues: (1) how OU is perceived publicly, an issue that vitally affects critical issues like student applications (especially among minorities), fund-raising, academic ranking, etc., etc.; and (2) how far OU may go in restricting the free-speech rights of the chanting students. The balancing act here is much more delicate than in the other cases because of the greater element of subjectivity introduced by (1). Furthermore – and this is really the nub of the issue – we are really not in a position to answer this latter version of the question unless and until we consider to what extent, if any, the students’ racist chant was an individually juvenile, individually nasty expression of individual prejudice, and to what extent the chant reflected a systemic cultural characteristic of SAE – even if only of this one SAE chapter. Addressing this question requires that we consider the context introduced by the companion video of the house-mother.

o The house-mother video

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The companion video to the bus-chant was about as explicit as you could wish for, it may well be more than you would wish for. It shows the SAE chapter’s house-mother, Beauton Gilbow, repeating a racist slur no fewer than seven times in a video -- in a full-face close-up, no less. Her response to the publication of the video clip was remarkable: I have been made aware that a video of me that is circulating on social media and in the news. I am heartbroken by the portrayal that I am in some way racist. I have friends of all race [sic] and do not tolerate any form of discrimination in my life. I was singing along to a Trinidad song but completely understand how the video must appear in the context of the events that occurred this week. The problem is that she was responding, not merely or even primarily as a private individual, but as part of the institutional leadership of the SAE chapter where she served as house-mother. Moreover, and especially on as sensitive a topic as race, separating the two roles is not an option.  Ms. Gilbow's position as part of the senior leadership of an organization recognized and subsidized by OU -- the leaseholder of the SAE chapter house -- is quite analogous to the position of members of the military.  In both cases, as long as they occupy that position of responsibility, they are subject to First Amendment restrictions that do not apply to the rest of us.  Any member of the military may be severely disciplined, even court-martialed, for voicing adverse opinions of superior officers or civilian command authorities. They have a perfect First Amendment right to express these opinions -- but not as long as they wear the uniform. For confirmation, ask Gen. David Petraeus. For both Gen. Petraeus and for Ms. Gilbow, any defense along the lines of "I was just expressing a personal opinion", and most of all "I was just joking", would never fly. (Nor is it germane to argue that Gen. Petraeus took an oath to obey lawful orders. Ms. Gilbow does the de facto equivalent every time she deposits her University salary check.) Similarly, as a leader in a campus organization sanctioned and subsidized by the State of Oklahoma, Ms. Gilbow can either express her racist sentiments ... or she may keep her job.  But she cannot do both. Therefore, she was (part of, to be sure) the public face of SAE to the community of Norman, OK – and, since SAE is an organization officially recognized by the University -- also at least implicitly the face of OU to that community. Without presuming to tar SAE nationally with the same brush, we can conclude that it is apparent that, at least in the case of this individual SAE chapter, the frat house of the OU chapter of Sigma Alpha Epsilon was a Petri dish culturing a virulent, if covert, kind of racism deeply inimical to the purpose to which Oklahoma University – really, any university – is dedicated.

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OU President David Boren

Now back to the bus chant. There is a vivid old cliché, of international provenance, to the effect that “The fish rots from the head down”. The racist OU bus-chant would seem to be a case-in-point. The house-mother’s repetition of a racial slur – seven times and on a video clip, no less! – provides a context for interpreting the chant on the bus. This does not diminish the responsibility of the students on the bus who led the chant. But it does tell us they did not act alone and in a vacuum, nor did they act in isolation from the culture that had grown up in the local SAE chapter. Also revelatory is what the other, non-chanting, passengers on the bus did not say: as far as I  can tell from the brief video clip, no one challenged the chanters. The latter, in fact, were all too reminiscent of conservatives who continue to repeat the mantra that "We live in a post-racial society".

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My conclusions: (1) OU President (and former Senator) David Boren acted responsibly when he expelled the students leading the chant and revoked SAE’s charter as an OU-recognized student organization; (2) there was no violation of First Amendment rights, because OU is under no more obligation than any other academic institution to provide a subsidized venue in which attitudes and values can metastasize that subvert the most foundational purpose of the institution. If the students nevertheless wish to spew racist rhetoric, they have an inalienable "abridgement" clause right under the First Amendment to do so on any street corner or in any park or in any other appropriate forum – but not on university property, not with university approbation, and not at public expense.

James R. Cowles

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