Writing online at The Root, associate editor David Swerdlick expressed satisfaction that the president of the University of Oklahoma former U.S. Senator David Bowen denounced the members of the Sigma Alpha Epsilon fraternity for using racist epithets and singing “There will never be a n--ger SAE.” In the March 13 post, however, Swerdlick said that he believes Boren and OU mishandled the case of objectionable speech that has shocked the nation.
He wrote, “Because if you’re going to boot students off campus—even if they’re a--holes—it has to be for valid reasons. And in a First Amendment context, Boren has to walk a fine line. As the Washington Post’s Eugene Volokh correctly notes—in a post that everyone has referred to this week—“racist speech is constitutionally protected,” no matter how odious.”
“There’s really no way these guys can be prohibited from singing ‘There will never be a n--ger SAE,’ wrote Swerdlick, who noted that part of living in a “free country is the freedom to sing things that are racist.” For Boren and the university, wrote Swerdlick, the question is whether rest of the lyrics sung by the partying frat boys,” ‘You can hang them from a tree, but he will never sign with me,’ goes beyond protected speech, and whether or not it constitutes an actual threat. And it’s here that I’m not sure whether Volokh is right.”
Swerdlick said that the letter of expulsion issued by Boren was a mistake. He quoted the letter as saying, ‘because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others’ “—never once referencing the potential of a ‘threat.’”
If indeed the students’ utterances can be considered a threat, they would then constitute admissible grounds for expulsion, wrote Swerdlick. Otherwise,” The way it’s written now, though, he’s violating Rice’s and Pettit’s First Amendment rights,” and “doing a disservice to the OU students—presumably, in particular, the African-American students whom he appears to be trying to protect. Wherever there are people, there’s going to be prejudice. And it’s Boren’s job to police OU students who are threatening their fellow students, not to shield students from the repugnant attitudes of their peers.”
Ed. note: this article corrects an earlier version. Apologies to Oklahoma State University fans.
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