Jerry Coyne

When I saw the videos of the members of the University of Oklahoma’s ΣAE fraternity singing racist songs on a bus, I was thoroughly appalled. Not only were they singing about how they’d never have a black person in their fraternity, but, using the “n” word, they sang about lynching, saying that “you can hang them [blacks] from a tree.”  Apart from the lynching, it reminded me of my father’s experience at Penn State in the 1930s, when no fraternity—out of about 40—would ever accept a Jewish student, except for the two all-Jewish fraternities, the only place they could go. Clearly, racism is alive and well on campuses, as is anti-semitism and sexism. They’ve just gone underground, so it’s no longer kosher to utter these sentiments in public. When they become public, as they did in this case, disapprobation and punishment is swift. At least we’ve moved that far in society. The elimination of bigotry begins when it’s no longer socially acceptable to be a bigot in public.

In light of this overt racism, the University of Oklahoma expelled two students who were both identifiable and making the offensive chant. The university also closed the fraternity house, giving the members only a day to remove their belongings and find other housing. I found the fraternity closure a bit draconian, for it punishes every fraternity member for the transgressions of only some of them.

But I also find the expulsion of the two students unacceptable—on grounds of free speech. The University of Oklahoma is a public university, an arm of the state government, and as such it’s governed by the First Amendment. That means that free speech is permitted—even speech that is horribly offensive—so long as it doesn’t incite immediate violence. Those racist students were therefore free to say what they wanted without fear of punishment.

Now I know that this sounds horrible, as if I’m condoning racism, and that the first reaction of many people is to say, “How can you permit that hate speech and the demonization of African-Americans? We must wipe it out!” And I agree that every effort should be made to expunge racism from America (or anywhere else). But there’s a larger principle at stake here, for banning “hate speech” is a slippery slope. One person’s hate speech is another person’s incitement to discussion.  Why were the fraternity brothers so opposed to blacks joining their group? And what about the anti-Zionist and anti-Semitic remarks recently made on the UCLA campus? Should we ban those, too, since they create a “climate of hate” for Jewish students? What about the Muslim students who think that Jesus and Mo tee shirts are just as bad as racist chants?  In my view, all of that should be allowed. Both legally and for the good of free discussion, all views must be heard.

Lest you think I’m being selective here, I would also defend fraternities’ right to make anti-Semitic chants, calling for the refusal of fraternities to accept Jews and even for people to gas them. Such sentiments would of course appall me, and make me uncomfortable, but I would fight back with every bit of speech I could muster. That is life. Colleges are microcosms of the real world, and out there there is racism, sexism, and anti-semitism that is not censored. Why should students be protected from it in college? If we are to allow free speech, then we must allow the most offensive of speech; otherwise the principle means nothing. The courts have agreed with this.

Because of this, I see no legal grounds for either expelling or punishing the students beyond the University admonishing them and telling them why. What is appropriate in this case is for black students to fight back with their own speech, calling out the racism for what it is and even calling for shunning the offending students. In a private university, where free speech rights don’t apply, the racist students could of course be expelled, but I would be leery of that, too.

I’m sure many readers will disagree with me, since it seems that I’m condoning racism or discrimination against minorities. I’m not; I’m arguing that free speech is a greater good than banning speech that is offensive. Banning speech does not stifle people’s bigotry—it just drives it underground. What eliminates bigotry is a free exchange of ideas, even if the ideas you battle make you intensely uncomfortable. I suppose I have faith (sorry to use that word) that airing all views will, in the end, help promote Enlightenment values.

I’m not alone in my views, for even some liberal legal scholars agree. My colleague Geoff Stone, who is about as liberal as a constitutional lawyer comes, argues as much in The New York Times:

[University of Oklahoma President David] Boren, in an interview Monday as he considered what action to take, said he was examining the relevance of Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by agencies that receive federal funds and, federal officials have said, forbids creation of a “racially hostile environment” in schools.

But Title VI is addressed to literal discrimination, and statements by students in a private setting do not come near to violating it, said Geoffrey R. Stone, a professor of law at the University of Chicago. A university could discipline students for disrupting classes with irrelevant or uncivil speech, Mr. Stone said, or otherwise disrupting the operations of the school.

“But it’s hard to make that case here,” he said of the Oklahoma situation. “The statements were made in the innocuous setting of a bus, and any disruption came from the showing of the video, not from the students’ speech,” Mr. Stone said.

. . . On Tuesday, the university’s president, David L. Boren, notified two students that “You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”

Eugene Volokh, a constitutional law expert at the University of California, Los Angeles, and prominent legal blogger, wrote that “similar things could be said about a vast range of other speech,” including praise for Muslim groups like Hamas that call for destruction of Israel, which could make Jews uncomfortable, or calls by black students for violent resistance to white police officers, which white students could interpret as hostile. [You can see Volokh’s argument in a piece in The Washington Post, which also addresses the argument that this speech violates nondiscrimination laws or constitutes a threat to the personal safety of African-Americans.]

But not every legal scholar agrees. As the Times notes:

In a break with most legal experts, Daria Roithmayr, a law professor at the University of Southern California who has written about the interplay of law and racism, said that a plausible argument could be made that the students’ action caused a “material disruption” in the university’s educational mission and was not protected by the First Amendment.

“The entire university now has to repudiate the bigotry of a fraternity,” she said, and for black students, “it’s a massive disruption.”

The University of Oklahoma has a code of “rights and responsibilities” prohibiting “conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.”

Whether the Saturday night chant amounted to such a violation, legal experts said, the code could not take precedence over First Amendment rights.

I agree with the “legal experts”, because any group can argue that speech that makes them uncomfortable, or demonizes them, constitutes a disruption. Instutional discrimination is a different matter: if fraternities are considered part of a public university (I’m not sure what their status is), then discriminating on ethnic, religious, or sexuality grounds for membership is illegal.

Some people might raise this objection: Isn’t sexual harassment, construed as creating a climate in the workplace that devalues and discriminates against women, among others, also illegal? And couldn’t that be effected through speech and conduct? But this is an issue of personal harassment and possible job discrimination persistently directed at specific individuals, which repeatedly targets people in enclosed spaces that they cannot avoid—issues not at play in the Oklahoma case. But there are gray areas. What if a professor says things in class, unrelated to his course, that students construe as creating a hostile environment?

In the end, the courts will (and should) adjudicate this issue. My bet is that if the Oklahoma students were to contest their expulsion on First Amendment grounds, they would win. In the meantime, I think we should avoid the immediate and instinctive desire to levy the maximum punishment against people who say odious and bigoted things in a public institution.