March 10th: What is Legal, What is Right, and What is Fair

A fraternity at the University of Oklahoma was thrown off campus this week after brothers from Sigma Alpha Epsilon were video recorded driving around campus in a bus, chanting racial slurs and viciously inappropriate remarks. The heinous chant is below. I include in this post only because it is necessary to hear these vile words so we are better able to prevent them:

“There will never be a n—– SAE/There will never be a n—– SAE/You can hang ‘em from a tree, but it will never start with me/There will never be a n—– SAE.”

After the video was put on social media and an uproar was heard from the community, University President David Boren responded on Twitter, saying “If the video is indeed of OU students, this behavior will not be tolerated and is contrary to all of our values. We are investigating.”

Well, the results of that investigation have come out in the last several days. The fraternity was thrown off of campus, and members were told to clear out of the house by the end of the day today. Student rallies were held to promote the values of the university community. And today, two of the students who were responsible for the chant were expelled from school. The students were thrown out for what was reported as having violated the zero tolerance policy for “threatening racist behavior.”

When I heard that the students were expelled from school, the telecommunications major in me ran for my textbook. I had that sick feeling in my gut when there is a battle between what is legal, what is fair, and what is morally right.

As much as we don’t like it, the frat boys were demonstrating their first amendment rights for free speech. Some are attempting to claim that it was hate speech. That argument is, from a legal perspective, unlikely. The easiest distinction for a hate speech claim is the presence of what the American Bar Association calls “fighting words,” which are “those words without social value, directed to a specific individual, that would provoke a reasonable member of the group about whom the words are spoken.” We can all acknowledge that this chant fits the first part (without social value), but there is not necessarily the real provocation for a reasonable person to respond violently, which is the stipulation. There is also no specific individual in question, which only furthers the argument that hate speech isn’t present. While it creates anger, it is not the type of thing that would lead to retaliatory behavior by any individual.

We also have to acknowledge that there was no “clear and present danger,” a standard that, while no longer a standard in law, was used as legal precedent to try similar cases in the past. The speech, while horribly offensive, does not create a clear and present danger for African Americans, as there is not the reasonable assumption that these college students would actually hang anyone or hurt them physically in any way, although the part about refusing entry to a black student is a different problem. There was never any evidence that the students were threatening anyone in particular. The singing quality of the chant doesn’t really spell foreboding, and doesn’t translate into a real threat to anyone’s safety, only to their ethical gag reflex.

Along the lines of discrimination, it is possible that there was discriminatory practices going on at SAE. It is more than possible. It is LIKELY. If that was the case, it is all the more reason to throw the frat off of campus, and to force the students living there to find new places to live. Unfortunately, that doesn’t give the school grounds to expel the students, as they were not directly responsible for a culture of discrimination, but rather participated in an institution that encouraged it.

On the whole, we can realistically say that, while terrible, these students were exercising their right to free speech. The next argument that we can make is that the students were speaking values contrary to the university, and thus should have been expelled. Schools have often served as a vehicle for change, and some would like to argue that the school was doing society a service by removing these students, thereby enforcing the values of the community as a whole.

This, though, is flawed too. While institutions at a public university (i.e. fraternities) are to be held to the moral, ethical, and ideological standard of the school, there isn’t the assumed requirement of shared values by the students. I know Jewish students who attend Catholic schools, and while that is a private school example, it is the similar notion that one does not have to be in sync with the values of the university that they attend.

Therefore, while it is reasonable to remove the fraternity from campus, there isn’t really grounds to expel the students for their speech, regardless of what the school believes. This same conclusion can be drawn when we analyze whether or not there was discrimination at play. The students themselves were not behaving in a discriminatory fashion (to clarify, YES racist, not necessarily discriminatory). They were reflecting the (flawed) values of their organization, and thus, it is the organization that should be removed, not necessarily the students.

It would be easy, thus far, to read my argument and claim that I am arguing in favor of this terrible behavior. That is, of course, not the case. I think this was a terrible act of stupidity and racism, and the punishments for the fraternity need to (and were) swift, immediate, and ruthless. I also think that the students responsible should have their names put in the school paper, and that they should be publicly labeled as racists, as members of their community who should be identified and shamed as the terrible people they are, and should be forced to own that as long as they attend school. What I don’t believe is that it is legally correct or even morally just to throw them out of school.

This comes down to another example of free speech that we wish weren’t. We wish we could pick and choose what was free and what others couldn’t say, but in doing so, we would compromise our ability to say what we wanted later on. While racism is (thankfully) no longer acceptable in a public forum, it is not illegal to believe in racist ideas. And it shouldn’t be legally wrong to speak those racist ideas, regardless of how uncomfortable they may be to hear. At one time, we used this same freedom of speech to fight for civil rights, and we should be incredibly thankful for that freedom, that has allowed this kind of ignorance to become the exception, rather than the norm. Yet, if we impede on the ability to say things like what the Oklahoma students were saying, we lose our ability to say what we find truly important. We can take away the microphone, but we can’t stop the words that they were saying.

One of the worst parts of all of this is that the students could potentially have legal grounds to sue the school, and, even more frighteningly, have the opportunity to win. These people could commit this horrible act of racism and ALSO see a payday in court. By throwing them out of school, the University of Oklahoma has compromised their ability to actually set the values from this event. While they most certainly had morality and ethics on their side, they might not have the law.

Sometimes, what is legal, what is right, and what is fair don’t always coincide. It is one of the hardest parts about living in this country, and one of the toughest debates we have to face. I have been rolling around my thoughts on the matter all day, and am by no means finished thinking. Yet, we cannot get so swept up in the moral righteousness that we ignore the legal foundations upon which this country is founded. I hope that this conversation is used not as an excuse for more prejudice and racism, but as an opportunity for learning and change.

If you enjoy the work of the Zoot Perspective, please visit my GoFundMe page, to help support me on my journey. Thank you very much.