SAE Video Discussion Thread

[sybarite]

I find it interesting that the constitutional law experts insist that OU is in the wrong in this case and that they would certainly lose. I don't know that the courts have been that consistent on their interpretation of the rights of a student. It seems to me that they have tended to grant the community or school the authority to set its own standards. We have seen numerous kids dismissed from highschool and grade school for failure to adhere to dress codes, even when such dress codes didn't seem to apply to the situation.

The courts have tended to accept that all rights have limitations, and that the are not absolute. While I wouldn't be surprised to see a local judge side with the boys if they were ever to institute a suit, I would be surprised if higher courts didn't eventually determine that the university had the authority to set its own standards. If not, they would have some rather inconsistent behavior.

 

[Cleavon Little]

Honest question here - aren't they basing the "hostile learning environment" claim on the second part of the chant? Even if intent isn't there, isn't the chant saying, "You can murder a member of a certain ethnicity (hang 'em from a tree) and we won't mind, but they will not be admitted to our frat."

If you are that ethnicity, and you heard members of a fraternity happily singing that they preferred your murder to your membership, wouldn't you at least a little feel like your learning environment might have a tinge of hostility to it?

Sorry for the wordiness and thanks for reading. More than anything I'm just sad that our great university has to deal with this. However, if frats are teaching racist songs, which it sounds like is going on (similarities to UT chant) it needs to be addressed.

 

[Zimwillett]

I find it interesting that the constitutional law experts insist that OU is in the wrong in this case and that they would certainly lose. I don't know that the courts have been that consistent on their interpretation of the rights of a student. It seems to me that they have tended to grant the community or school the authority to set its own standards. We have seen numerous kids dismissed from highschool and grade school for failure to adhere to dress codes, even when such dress codes didn't seem to apply to the situation.

The courts have tended to accept that all rights have limitations, and that the are not absolute. While I wouldn't be surprised to see a local judge side with the boys if they were ever to institute a suit, I would be surprised if higher courts didn't eventually determine that the university had the authority to set its own standards. If not, they would have some rather inconsistent behavior.

I actually think the Tinker v. Des Moines (Vietnam armband case) is instructive---students don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

You are correct that Courts have been a little more willing to limit students' privacy rights at school, but are less inclined to do so with freedom of expression. Again, I think the 4th Circuit's opinion in the George Mason pretty much gives you the road map here. Those facts are eerily similar.

 

[sybarite]

What do you consider expression? An American Indian student is prohibited from wearing his hair as his tribe prescribes. He is expelled for a violation of a dress code. Is this not a case of expression?

Did Boren actually prohibit their freedom of speech, or did he simply say that you can't say that here?

 

[Zimwillett]

Honest question here - aren't they basing the "hostile learning environment" claim on the second part of the chant? Even if intent isn't there, isn't the chant saying, "You can murder a member of a certain ethnicity (hang 'em from a tree) and our frat won't mind, but they will not be admitted to our frat."

If you were a member of that ethnicity, and you heard that members of one fraternity were happily singing that they preferred your murder to your membership, wouldn't you at least a little feel like your learning environment might have a tinge of hostility to it?

Sorry for the wordiness and thanks for reading. More than anything I'm just sad that our great university has to deal with this. However, if frats are teaching racist songs, which it sounds like is going on (similarities to UT chant) it needs to be addressed.

But where do you draw the line? What about a statement like "round up all the Commie Pinkos and give them what they deserve"? Wouldn't socialist students feel threatened by that? For that matter, I'd argue that Eric Striker's now famous tirade could be considered by some as creating a "hostile" environment. I'd certainly feel threatened by that if I were an SAE.

What about a cartoon of the Prophet Muhammad in a student pamphlet? Muslim students would undoubtedly consider that "hostile" to the point that it has the potential to lead to violent protests, but should it be prohibited or the artist be punished for it's publication?

For these reasons, the threat of violence must be real and imminent for the speech to be suppressed. In this case, there's just no way you can argue that the "hang 'em from a tree" line was a real or imminent threat. Vile, disgusting, and contemptible? Absolutely. But it just doesn't rise to the level of the kind of "threat" we're talking about here.

 

[Cleavon Little]

But where do you draw the line? What about a statement like "round up all the Commie Pinkos and give them what they deserve"? Wouldn't socialist students feel threatened by that? For that matter, I'd argue that Eric Striker's now famous tirade could be considered by some as creating a "hostile" environment. I'd certainly feel threatened by that if I were an SAE.

What about a cartoon of the Prophet Muhammad in a student pamphlet? Muslim students would undoubtedly consider that "hostile" to the point that it has the potential to lead to violent protests, but should it be prohibited or the artist be punished for it's publication?

For these reasons, the threat of violence must be real and imminent for the speech to be suppressed. In this case, there's just no way you can argue that the "hang 'em from a tree" line was a real or imminent threat. Vile, disgusting, and contemptible? Absolutely. But it just doesn't rise to the level of the kind of "threat" we're talking about here.

I would say that to a degree each of the examples you listed would constitute degrees of violation of the conduct code that DBo cited in expelling the students. However, the combined chanting of the majority of the bus, which was filled with members of one institution on campus, took things above and beyond. One threat does not a hostile environment make. One busload of frat members does. If the football team in unison was chanting about killing SAE's, or a right wing group was chanting "You can kill all commies on campus," or 50 students chanted to kill all Muslims but not to let them into the student union, then I would expect similar responses from administration. It's not a protection of speech issue under the law as much as it is a violation of the code of conduct for this university.

 

[scrybe]

I find it interesting that the constitutional law experts insist that OU is in the wrong in this case and that they would certainly lose.

Syb: "Experts" aside, I think the premise you stated above needs clarification (as it applies to me, at least). I do not believe Boren was, in any way, wrong in the actions he took against those students or the fraternity. In fact, I both support and applaud him. But I do believe that OU would stand a fairly good chance of losing this case if it was challenged in court.

 

[sybarite]

Syb: "Experts" aside, I think the premise you stated above needs clarification (as it applies to me, at least). I do not believe Boren was, in any way, wrong in the actions he took against those students or the fraternity. In fact, I both support and applaud him. But I do believe that OU would stand a fairly good chance of losing this case if it was challenged in court.

I don't know. But, I question that. I have heard the "constitutional scholars" that TV tends to use on this type of issue, and they seem to operate in a test-tube situation. When I look at what types of decisions have been made, it leads to doubt. It seems that every time I have watched such a verdict, it has come in on the side of the institution. It also seems that there are exceptions. English law seems to be a matter of exceptions. I would like to see how this case would be argued and decided, and I doubt that it would be decided the same by all jurists.

 

[scrybe]

I don't know. But, I question that. I have heard the "constitutional scholars" that TV tends to use on this type of issue, and they seem to operate in a test-tube situation. When I look at what types of decisions have been made, it leads to doubt. It seems that every time I have watched such a verdict, it has come in on the side of the institution. It also seems that there are exceptions. English law seems to be a matter of exceptions. I would like to see how this case would be argued and decided, and I doubt that it would be decided the same by all jurists.

Good points, all. At any rate, I'm no expert and obviously don't know how the courts would ultimately rule. Just sharing my gut feeling.

 

[Zimwillett]

Syb: "Experts" aside, I think the premise you stated above needs clarification (as it applies to me, at least). I do not believe Boren was, in any way, wrong in the actions he took against those students or the fraternity. In fact, I both support and applaud him. But I do believe that OU would stand a fairly good chance of losing this case if it was challenged in court.

Ditto. I really hope no one takes my analysis as any sort of criticism of Boren or a defense of these idiots. OU absolutely did what it had to do, and I'm really glad they acted and didn't wring their hands over these legal issues.

All I'm saying is that, unless they are able to create some new legal precedent based on some of the arguments here (which is possible), they'll more than likely lose any legal challenge.

 

[sybarite]

I see so much that could clutter up a purely theoretical case that a TV scholar might want to use:

1. Boren didn't actually stop free speech. He just said it could not be said here.
2. Has not the tern, "n......," been accepted as verbal assault? If so, was Boren simply not taking action against those who committed a crime?
3. How much of an imminent danger must it be. Have African-Americans been hung in the US? Is the term a perceived threat? Recent interpretations involving perceived threats and the use of firearms would suggest that it doesn't take much to establish a perceived threat.

I would look at any judge with great interest as to how he would adjudicate decisions surrounding such a case. Reality, The families of the two boys want it gone and forgotten.

 

[BoulderSooner]

The OU football team is 8 months removed from a star running back clocking a girl in the face.

so overstated and out of context

 

[BoulderSooner]

Syb: "Experts" aside, I think the premise you stated above needs clarification (as it applies to me, at least). I do not believe Boren was, in any way, wrong in the actions he took against those students or the fraternity. In fact, I both support and applaud him. But I do believe that OU would stand a fairly good chance of losing this case if it was challenged in court.

this

 

[Zimwillett]

I see so much that could clutter up a purely theoretical case that a TV scholar might want to use:

1. Boren didn't actually stop free speech. He just said it could not be said here.

"The City didn't stop those war protesters free speech, they just threw them in jail where no one could hear them." The type of punishment doesn't matter. It's that the government took punitive action on the basis of speech.

2. Has not the tern, "n......," been accepted as verbal assault? If so, was Boren simply not taking action against those who committed a crime?

No. It wasn't. I don't know where you're getting this, but it's a serious stretch.

3. How much of an imminent danger must it be. Have African-Americans been hung in the US? Is the term a perceived threat? Recent interpretations involving perceived threats and the use of firearms would suggest that it doesn't take much to establish a perceived threat.

The Brandenburg v. Ohio case basically sets the precedent as it applies to incitment speech. The holding there is basically that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. As disgusting as "hang 'em from a tree" is, I don't think anyone could reasonably argue that it was directed to inciting or is likely to incite, imminent lawless action. Again, this is a serious stretch.

I would look at any judge with great interest as to how he would adjudicate decisions surrounding such a case. Reality, The families of the two boys want it gone and forgotten.

.

 

[coolm]

Paid for exorbitant legal fees? LOL that is HILARIOUS! I bought a car but that doesn't make me a mechanic. I bought lunch but that doesn't make me a chef. Anyway, I digress.

I want to go back to the other part of this discussion. I was also a greek at OU in the early to mid 80's and that racism crap was darn prevalent. Not sure where these other guys were frequenting but the Betas, Delts, Sig Eps, Sigma Nus, Lambda Chis, and a few others were chock full of racists. Don't even get me started about the sororities. I heard that same damn song at no less than 3 of those listed above. If you signed during summer rush and participated in the geek squad during open rush (to run off those who "didnt fit in") then you heard it all. VERY racist and intolerant.

In fact, the whole reason I left the greek system at OU was because I was told in no uncertain terms that my dating a black girl was wrong and I shouldnt be hanging out with friends at the BSU. So racism was very prevalent.

When SAE was allowed back on campus around '94 their officers included many minorities and it was a very open, diverse and tolerant group. I know a guy real well who was there during that period and he told me they weren't anything like that (racist). Of course, Ms. Gilbow is the mother of one of my friends from EHS (Jason Gilbow) and she is NOT racist nor is Jason. In fact, Jason's family is very very tight with The King and I would hope everyone knows he is FAR from being racist.

The point is it has been a problem in the past and even when a group thinks they get by it .. it creeps right back in. And it will continue to creep right back in as long as you have close-minded alumni and their privileged children as the target pledges.

That said - the TKE house at UCO is an example of the other side. Those guys had a diverse house way back in the early 80's and to this day offer a great example of the tolerance a fraternity should strive to achieve. It's because their alum are dedicated to being a diverse and open group and stress it every step of the way. OU's greek system should follow suit.

 

[sybarite]

Zim, I question if the courts will agree with you. I think there have been adequate contradictory rulings that cloud the issue. You are a lot more inclined to think that free speech (or any freedom for that matter) is more absolute than I am. We have imposed limitations on about all of the rights under the bill of rights. You have freedom of assembly, as long as you have a permit, etc. I see this as being a very clouded issue.

 

[garyeb2]

Paid for exorbitant legal fees? LOL that is HILARIOUS! I bought a car but that doesn't make me a mechanic. I bought lunch but that doesn't make me a chef. Anyway, I digress.

I want to go back to the other part of this discussion. I was also a greek at OU in the early to mid 80's and that racism crap was darn prevalent. Not sure where these other guys were frequenting but the Betas, Delts, Sig Eps, Sigma Nus, Lambda Chis, and a few others were chock full of racists. Don't even get me started about the sororities. I heard that same damn song at no less than 3 of those listed above. If you signed during summer rush and participated in the geek squad during open rush (to run off those who "didnt fit in") then you heard it all. VERY racist and intolerant.

In fact, the whole reason I left the greek system at OU was because I was told in no uncertain terms that my dating a black girl was wrong and I shouldnt be hanging out with friends at the BSU. So racism was very prevalent.

When SAE was allowed back on campus around '94 their officers included many minorities and it was a very open, diverse and tolerant group. I know a guy real well who was there during that period and he told me they weren't anything like that (racist). Of course, Ms. Gilbow is the mother of one of my friends from EHS (Jason Gilbow) and she is NOT racist nor is Jason. In fact, Jason's family is very very tight with The King and I would hope everyone knows he is FAR from being racist.

The point is it has been a problem in the past and even when a group thinks they get by it .. it creeps right back in. And it will continue to creep right back in as long as you have close-minded alumni and their privileged children as the target pledges.

That said - the TKE house at UCO is an example of the other side. Those guys had a diverse house way back in the early 80's and to this day offer a great example of the tolerance a fraternity should strive to achieve. It's because their alum are dedicated to being a diverse and open group and stress it every step of the way. OU's greek system should follow suit.

nice post

 

[DenverSooner]

Syb: "Experts" aside, I think the premise you stated above needs clarification (as it applies to me, at least). I do not believe Boren was, in any way, wrong in the actions he took against those students or the fraternity. In fact, I both support and applaud him. But I do believe that OU would stand a fairly good chance of losing this case if it was challenged in court.

I agree with this 100%.

 

[Zimwillett]

Zim, I question if the courts will agree with you. I think there have been adequate contradictory rulings that cloud the issue. You are a lot more inclined to think that free speech (or any freedom for that matter) is more absolute than I am. We have imposed limitations on about all of the rights under the bill of rights. You have freedom of assembly, as long as you have a permit, etc. I see this as being a very clouded issue.

Censorship on the basis of content is a totally different issue than permitting and other types of free speech issues. You don't have to believe me, but I can tell you from experience that if courts sniff a hint of content based censorship, the government is going to get smacked down virtually every time.

Again, I'd encourage you to read the GMU case I linked above. It is as factually "on point" and analogous to this set of facts as you'll ever find and the outcome is as I've described. Find me a case from the US Supremes or another Federal Circuit court that reaches a differing opinion on a similar set of facts and I'll have to reconsider everything I've said here.

 

[Cleavon Little]

Why do they have a code of conduct with penalties including expulsion? Shouldn't they just say "If you break the law, you will be punished accordingly by the jurisdiction where the law took place, but not at this institution. We are a public extension of government, so due to laws against double jeopardy, you may attend this university regardless of conduct as long as you are not incarcerated or restricted due to house arrest."