March 11, 2015

F.I.R.E.: University of Oklahoma Expels Students for Constitutionally Protected Speech. “The university’s actions also present serious due process concerns.”

Will the students sue? I would. Right now they’re tarred as racists. If they win, they’ll be First Amendment heroes. And experience suggests that apologies don’t help, but just embolden the people who are after you. As a great man once said, punch back twice as hard.

UPDATE: OU Could Be Making A Huge Mistake With Its Expulsions.

Civil liberties advocates have already pointed out that punishing the students could be illegal, saying the song is protected free speech. But even if the offenses warranted expulsion, the taxpayer-subsidized school could be shooting itself in the foot by acting so quickly, and Boren could even be personally exposing himself to thousands of dollars in damages should he be sued by the punished students. (RELATED: The Oklahoma Frat Song Was Racist, But Was Still Free Speech)

In the letter that Boren used to notify each student of their expulsions, he appears to be acting unilaterally as president to immediately expel the students without any prior due process.

“As president of the University of Oklahoma acting in my official capacity, I have determined that you should be expelled from this university effective immediately,” the letter reads. “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.” . . .

Oklahoma, like most universities, has a student conduct code outlining the reasons students can be disciplined by the school. The code also has an appendix explicitly listing the procedures to be followed when a student is accused of misconduct. There is no listed procedure allowing the school’s president to unilaterally punish any student, let alone expel them. Instead, there is a clear process to be followed, with extra safeguards for students facing expulsion that would be virtually impossible to meet in the two days.

For example, the code clearly states that conducting conducting investigations is the prerogative of the Student Conduct Office, and that any punishment must be preceded by ordering an accused student to attend a “mandatory meeting” to hear and, if the student wishes, answer the allegations against them. Students have at least a five-day window to have this meeting, unless prompt action is “essential” due to a substantial safety concern or the imminent end of a semester.

Student Conduct can only suggest a punishment following this mandatory meeting, and if the student disagrees, the student is allowed to request a full hearing, which is not an appeals body but rather assesses the case independently.

In cases involving a possible expulsion, even more protections exist, ensuring the accused the right to an attorney and the opportunity to cross-examine witnesses against them, as well as present evidence on their behalf. And even if the students’ involvement with the video is not in doubt, they are promised the opportunity to show remorse, suggest mitigating circumstances, or offer other forms of defense.

Instead, Boren appears to have overridden these procedures, and it could end up costing him, personally.

Yeah, the First Amendment issue may be clear enough to override qualified immunity; the due process issue is clearer still since it’s spelled out in the school’s own manual. If it were me, I’d go after him personally.

And as for the people in the comments who say that libertarians like me, Eugene Volokh, and FIRE shouldn’t be defending these students: If you only defend speech you agree with, you’re not a free speech advocate, you’re just a partisan hack.