*WASHINGTON, D.C. — Many SAE students who have been adversely affected by the decisions of Oklahoma University‘s President David Boren, in response to a racist song sung in private on a bus, could sue not only the university but also its president in his individual capacity, and there is ample legal precedent for such suits, says public interest law professor John Banzhaf.
There are many legal grounds upon which law suits, some seeking not only damages but also payment of attorney fees, could be brought. These 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 for their places of dwelling.
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 of the U.S. Constitution” – even if they mentions lynching, 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 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 which wasn’t provided. Many courts have said that such language constitutes a binding agreement on behalf of the university – a contract between it and each student – and that violation can likewise create legal liability.
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 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, notes Banzhaf. 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 a public “ugly woman contest” 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 threatened. In the SAE case, the speech was obviously intended to be private, and not to be publicized to anyone who might be adversely affected by the sentiments expressed. If any places should protect free speech, it should be colleges, says Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW/ Washington, DC 20052, USA/ (202) 994-7229(703) 527-8418
https://banzhaf.net/ @profbanzhaf
