Is University of Oklahoma frat’s racist chant protected by 1st Amendment?

The lyrics to the Sigma Alpha Epsilon chant include the N-word and a reference to lynching black people.

Is it racist? Incredibly.

Is it protected by the 1st Amendment? Probably, experts say.

Attorneys and law professors have watched with interest this week as the University of Oklahoma moved swiftly to disband the school’s SAE chapter and expel two students on suspicion of leading the racist chant, which was captured on a now-viral video.

University President David Boren acted decisively in dismantling the chapter, but experts say the university may be on shaky legal ground. Here’s a look at the issues.

What are the lyrics to the chant?

The video is not totally clear, but these appear to be the words, including three uses of the n-word, set to the tune of “If You’re Happy And You Know It”:

There will never be a ... SAE
There will never be a ... SAE
You can hang ‘em from a tree
But he’ll never [inaudible -- possibly “sign”] with me
There will never be a ... SAE.

What did the university say when it expelled the two students?

“This is to notify you that, 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,” Boren said in his expulsion letter to the two students, which was obtained by local news media. “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.”

Boren appears to be alluding to Title VI of the Civil Rights Act, which bans racial discrimination at institutions receiving federal money -- which includes the University of Oklahoma, a state university.

But as a state university, it also has to comply with the 1st Amendment.

“These situations are very, very challenging for universities,” says Kevin Reed, vice chancellor of legal affairs for UCLA. Under federal law, universities have an obligation to “create and maintain a climate that is free of racial discrimination,” Reed says, adding that the university also has to respect students’ right to free expression.

When there’s “conduct and behavior that makes members of the student body feel unsafe, unprotected, a subject of hate … universities have an obligation to act to try to remedy that situation, to prevent it,” Reed says. “Balancing that obligation with the 1st Amendment is the university’s challenge.”

The University of Oklahoma’s expulsion order gives the students three days to contact officials about an appeal, at which point a disciplinary meeting could be held within 10 days.

What do legal experts say about the university’s decision to expel the students?

• Joey Senat, an associate professor who teaches media law at Oklahoma State University in Stillwater: “I believe these students -- under Supreme Court rulings on 1st Amendment for college students -- would have the right to say the very same thing on the library lawn, so to speak. ... The speech is offensive, the speech is abhorrent, but the 1st Amendment protects unpopular speech.”

• Robert D. Nelon, an Oklahoma City attorney with the Hall Estill law firm who handles media law: “This is a close case. Perhaps the university has gone a little further than the Constitution would permit in expelling the students. It may be the university would be better in tune with the Constitution if they took to the public forum like President Boren did yesterday and expressed publicly their outrage and meet speech with speech rather than expelling the students.”

• Erwin Chemerinsky, 1st Amendment law professor and dean of the UC Irvine School of Law: “What can be punished is if it could be shown the speech was threatening to another [person]. There’s no right to engage in speech that reasonably causes another to fear for his or her safety. ... [But] it can’t be said that this speech was a threat to somebody. I find this horribly offensive, but I don’t see why this isn’t speech protected under the 1st Amendment.”

• Joe Cohn, legislative and policy director of the Foundation for Individual Rights in Education, a student legal advocacy group based in Philadelphia: “The school’s a public university. At public universities, the 1st Amendment applies in full force. ... The Supreme Court has said repeatedly that speech, even racist speech, is protected under the 1st Amendment. They have never shied away from that. ... Just because a speech is racist doesn’t remove its protection.”

So could the expelled students sue the university?

Yes, experts say.

Even if the students’ speech violates student conduct codes at the university, those codes can be deemed unconstitutional infringements of speech. An argument that the racist chant violates Title VI of the Civil Rights Act may also be fruitless, experts said.

But whether the students will sue is another question.

An Oklahoma defense attorney who has litigated against the University of Oklahoma in student misconduct and due process cases said he agreed with Boren’s decision to move swiftly to punish the students -- even though it’s in a legal “gray area.”

“I’m the person that gets these calls, and I’d tell you, I wouldn’t touch this case with a 10-foot pole,” said the attorney, who requested anonymity to speak frankly about the incident, which he said disgusted him. “Here’s what I think is going on: I think President Boren knew what he needed to do, and they’re definitely in a gray area when it comes to due process.”

But the gray area may not matter. The attorney said that public opinion in Norman was so overwhelmingly against the fraternity that he didn’t think the fraternity students would risk a lawsuit to try to return to a hostile campus.

In other words: Even if the university infringed on the students’ rights, it could get away with it.

“If I was President Boren, I would have done exactly the same thing,” the defense attorney said. “He found what he needed to do legally and ran it through. … He knew exactly what he could do to push the envelope and pushed it -- and it needed to be pushed.”

Times staff writer Hailey Branson-Potts contributed to this report.

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