For Racist Speech - Educate College Presidents, Not Students

There Simply is no Exemption to the First Amendment for “Hate Speech”
WASHINGTON - March 15, 2015 - PRLog -- At the University of Oklahoma, all members of a fraternity, including many who did not even participate in the private singing of a racist song, were summarily evicted from their dwellings, even though virtually all legal commentators addressing the issue have recognized that, in the absence of a clear and present danger, even disciplining those who led the singing is a clear violation of their constitutional rights for which the university and its president could be held legally liable.

        Likewise, the University of Maryland is apparently considering disciplining a student for sending an email to a handful of other students in which he expressed his sexual preferences in women based upon their race, and used some vulgar words.  That's also strange, says public interest law professor John Banzhaf, because it is not illegal, even in a public ad or notice, to specify the race, ethnicity, and gender of a desired roommate, so why would expressing such preferences regarding a much more intimate association, and doing it in a strictly private email, trigger a major campus investigation.

        For these and other "transgressions," many are arguing that there should be mandatory educational programs - what others have called indoctrination - for all incoming students (or at least for fraternity members).  But perhaps what is really needed is educational programs for college presidents, deans, and other administrators who either don't understand or fully appreciate not only the legal  protections offered to students under the First Amendment, but also that academic freedom obviously includes the right to articulate ideas which are very unpopular with the majority views at a university.

        Singing songs in praise of apple pie and motherhood, or sending emails expressing preferences for sexual partners who are pretty or smart, obviously don't need the protection of the First Amendment nor guarantees based upon academic freedom, explains Banzhaf.  Rather, the guarantees of Free Speech and academic freedom are expressly established to protect speech to which most in a community very strongly object, find abhorrent, reprehensible, etc.

        It may be the official view of a university - to the extent that a university, and not its individual members, has official views - that persons of all races have equal abilities, that there is nothing wrong with engaging in homosexual acts, etc. but individual students in our free society have a right to disagree and, especially in private among those with similar views, to express them.

        Banzhaf, who has himself brought many successful legal actions against discrimination based upon race, ethnicity, gender, etc. notes that the proper remedy for “bad speech” is not to punish those who engage in it - especially in private - but rather to overwhelm it with “good speech,” but not indoctrination.

        At Oklahoma, the president’s actions have opened the institution and its president up to law suits in federal court, seeking not just damages, but also attorney’s fees.

        There are many legal grounds upon which law suits could be brought, says Banzhaf, who has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."

        These causes of action include violation of rights to Free Speech under the U.S. Constitution, violation of their rights to Due Process also guaranteed by the Constitution, violation of the procedural protections guaranteed by the university's own "Student Rights and Responsibilities Code," and legal action under any local laws protecting people from summary evictions from dwellings.

        Virtually all legal authorities who have spoken out agree that a state school cannot expel students for even racist or hateful statements - "there is no hate speech exception to the U.S. Constitution" - even if the speech mentions lynching, and especially if the speech occurred in private.

        It's also clear that, under the Due Process clause, students cannot be suspended or expelled for even ten days - much less permanently - without some kind of hearing.  For such violations of fundamental constitutional rights, the law provides that those injured by the violations can sue both the institution and any responsible individuals in federal court, and may recover not only damages but also attorney's fees.

        The OU student rights code also contains guarantees, not only related to academic freedom and freedom of expression generally, but also the right to notice and a hearing.

        Finally, most states and local governments have laws which provide legal protection against people being summarily evicted from their dwellings, and these would probably provide an additional cause of legal action.  This is particularly true of the many SAE brothers who were not even on the bus, and were completely unaware for what occurred. These students, and any on the bus who did not participate in the singing, have been thrown out onto the street with their belongings despite their lack of any culpability.

        There are several legal precedents.  For example, a former Valdosta State University student had been dismissed because the president found that a collage of pictures posted on his Facebook page was a "threatening document" which presented "a clear and present danger to this campus."

        A federal court judge ruled that the president had acted unconstitutionally, and held him personally liable for damages.  The judge also ruled that the state's Board of Regents violated a contract between the student and the board created by the school's published statements.

        In another case, George Mason University punished an entire fraternity for putting on an "ugly woman contest" in public which was allegedly sexist and racist.  Without even a trial, a federal judge nullified the sanctions, and the court of appeals affirmed, saying songs and even skits are protected Free Speech.

        It's important to note, says Banzhaf, that both of these cases involved clearly public speech designed to be heard by others who might be offended or even feel threatened.  In the Oklahoma and Maryland cases, the speech was obviously intended to be private, and not to be publicized to anyone who might be adversely affected by the sentiments expressed.

GWU Law School

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