PROF. JOHN BANZHAF IS WEIGHING IN ON THE OKLAHOMA SITUATION:
For Racist Speech – Educate College Presidents, Not Students
There Simply is no Exemption to the First Amendment for “Hate Speech”
WASHINGTON, D.C. (March 16, 2015) – At the University of Oklahoma, all members of a fraternity, including many who did not even participate in the private singing of a racist song, were summarily evicted from their dwellings, even though virtually all legal commentators addressing the issue have recognized that, in the absence of a clear and present danger, even disciplining those who led the singing is a clear violation of their constitutional rights for which the university and its president could be held legally liable.
Likewise, the University of Maryland is apparently considering disciplining a student for sending an email to a handful of other students in which he expressed his sexual preferences in women based upon their race, and used some vulgar words. That’s also strange, says public interest law professor John Banzhaf, because it is not illegal, even in a public ad or notice, to specify the race, ethnicity, and gender of a desired roommate, so why would expressing such preferences regarding a much more intimate association, and doing it in a strictly private email, trigger a major campus investigation.
For these and other “transgressions,” many are arguing that there should be mandatory educational programs – what others have called indoctrination – for all incoming students (or at least for fraternity members). But perhaps what is really needed is educational programs for college presidents, deans, and other administrators who either don’t understand or fully appreciate not only the legal protections offered to students under the First Amendment, but also that academic freedom obviously includes the right to articulate ideas which are very unpopular with the majority views at a university.
Singing songs in praise of apple pie and motherhood, or sending emails expressing preferences for sexual partners who are pretty or smart, obviously don’t need the protection of the First Amendment nor guarantees based upon academic freedom, explains Banzhaf. Rather, the guarantees of Free Speech and academic freedom are expressly established to protect speech to which most in a community very strongly object, find abhorrent, reprehensible, etc.
It may be the official view of a university – to the extent that a university, and not its individual members, has official views – that persons of all races have equal abilities, that there is nothing wrong with engaging in homosexual acts, etc. but individual students in our free society have a right to disagree and, especially in private among those with similar views, to express them.
Banzhaf, who has himself brought many successful legal actions against discrimination based upon race, ethnicity, gender, etc. notes that the proper remedy for “bad speech” is not to punish those who engage in it – especially in private – but rather to overwhelm it with “good speech,” but not indoctrination.
At Oklahoma, the president’s actions have opened the institution and its president up to law suits in federal court, seeking not just damages, but also attorney’s fees. . . .
These causes of action 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 from dwellings.
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 to the U.S. Constitution” – even if the speech mentions lynching, and especially if the speech occurred in private.