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University of Oklahoma Declares War on the Constitution

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As anyone with an active social media life is probably already aware, a group of fraternity brothers at the University of Oklahoma performed a racist chant on a bus, some very smart person decided to record it, and some even smarter person decided to leak the video. Of course, frats engaging in offensive behavior is nothing new. What makes this case special is the university's response:

To those who have misused their free speech in such a reprehensible way, I have a message for you. You are disgraceful. You have violated all that we stand for. You should not have the privilege of calling yourselves "Sooners." Real Sooners are not racist. Real Sooners are not bigots. Real Sooners believe in equal opportunity. Real Sooners treat all people with respect. Real Sooners love each other and take care of each other like family members.

Effective immediately, all ties and affiliations between this University and the local SAE chapter are hereby severed. I direct that the house be closed and that members will remove their personal belongings from the house by midnight tomorrow. Those needing to make special arrangements for positions shall contact the Dean of Students.

All of us will redouble our efforts to create the strongest sense of family and community. We vow that we will be an example to the entire country of how to deal with this issue. There must be zero tolerance for racism everywhere in our nation.

David L. Boren President University of Oklahoma

Most people have cheered on President Boren. Most people aren't (very) racist, most people deplore racism, and more people like it when racists get their comeuppence. Most people haven't bothered to consider what "public" in "public university" means.

Here in the good ol' USA, we have freedom of speech, protected by the First Amendment. And with the passage of the Fourteenth Amendment a few years ago, the First Amendment applies to the states and other local government agencies. And specifically, it applies to public universities. The First Amendment regulates public universities. The First Amendment regulates public universities. Really can't say this enough, the First Amendment regulates public universities.

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Healy v. James (1972) (internal citations omitted)

The First Amendment regulates public universities. And you know what the First Amendment doesn't allow? View point discrimination. You know what evicting someone because of their expressed views is? View point discrimination. You know who can't do that? A public university.

But wait! You might say that the school isn't saying they can't hold those views. It's just saying they can't use university space for their private racist social club. And there's no right to use space for your private club, now is there? That might be a good argument, if only Healy v. James was specifically about the ability for a university to deny recognition of a student group based solely on that group's objectionable views. The First Amendment doesn't just prevent the government from directly prohibiting speech, it also prevents it from punishing people in other ways based on their views.

The law really couldn't be more clear on this. OU's anti-discrimination policy couldn't be more clear on this: "Members of the University community enjoy significant free speech protections guaranteed by the First Amendment of the United States Constitution. This policy is intended to protect members of the University community from discrimination not to regulate protected speech." And even President Boren's message couldn't be more clear. He acknowledges that the students have the right to free speech, but is punishing them for what he sees as a "misuse" of that right.

If your right to free speech is limited to only those words which President Boren deems acceptable, then it isn't free speech. "There must be zero tolerance for racism everywhere in our nation." President Boren really needs to go back to a high school civics class. Individuals can choose not to tolerate racists or racism. But government actors? The Constitution requires tolerance, no matter how abhorrent the view.


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