Was University of Oklahoma President David Boren legally justified in expelling two students for leading a highly offensive, racist chant on a private bus? This is the question that I have been asked over and over again these past few days, and most recently discussed on the evening of March 12th on WGBH TV’s Greater Boston with Jim Braude. The answer is unequivocally: No.


I have stretched my memory trying to recall another time when I’ve argued with so many sophisticated people who did not understand when the First Amendment’s instruction as to a particularly awful bit of speech is utterly clear. The First Amendment is near-absolute in its terms (“Congress shall make no law…abridging the freedom of speech…”), but critics of this foundational right seem always bent on finding, imagining, or creating an exception. Even some sophisticated students, and teachers, of the First Amendment have been trying to wiggle out of the obvious fact that speech this ugly is protected. These efforts to re-define what constitutes unprotected speech, or to craft exceptions where there are none, reminds me that Sigmund Freud is said to have reminded us that “sometimes a cigar is just a cigar.”

A recap for anyone who has been asleep recently: In early March a video was uploaded showing members of Oklahoma University’s Sigma Alpha Epsilon chapter chanting the following, contemptible lines:

“There will never be a n****r at SAE
There will never be a n****r at SAE
You can hang him from a tree
But he’ll never sign with me
There will never be a n****r at SAE”

The Supreme Court has made it very clear that government actors (the University of Oklahoma is a state institution, and President Boren is what the law designates as a “state actor”) may not censor speech in the absence of one or more factors that would exempt that speech from First Amendment protection. Such protection does not apply to: defamatory speech; copyrighted speech used without permission, with the exception of short quotes; obscene speech; incitement to violent conduct; and clear threats.

The argument for expelling the students is as follows:

First, it is claimed by those who would withhold speech protection that the chant constituted a real threat, since the singers were saying that they would lynch their African-American classmates. This exception clearly does not apply, since, for one thing, the song was not directed to those students; it was sung in a bus containing, needless to say, no African-Americans. (So, there’s one irony – the vicious speech was not a threat in part because it was sung among a group of all-white fraternity brothers and their non-African-American dates.)

Lest there be any doubt, there is a recent Supreme Court opinion that makes perfectly clear that bigoted language such as the SAE brothers sang on the bus is fully protected by the First Amendment. In Virginia v. Black, decided by the high court on April 7, 2003, the justices dealt with a Virginia statute that criminalized cross-burning. At issue was a KKK rally, on private property with the permission of the property-owner, at which a cross was burned as a symbolic statement of racial hatred. The Supreme Court made it clear when the state could, and when it could not, criminalize the act of cross-burning. If the act was simply a declaration of racial prejudice and contempt, even if done in a public setting, it must be deemed constitutionally protected speech. If, on the other hand, the particular cross-burning was performed in a time, place and manner such that it reasonably could be seen as a true threat, it could be punished by the state. (Thus, for example, the burning of a cross on or near the property of a particular black family could reasonably be seen as a threat.)

The bottom line is that the puerile, racist ditty chanted on a fraternity bus is not a close case. There was no threat, merely the expression of racial superiority and hatred.

Second, it is argued that the song created a “hostile educational environment” on the campus, in violation of federal Department of Education (“DOE”) regulations (based on Title VI of the Civil Rights Act of 1964) that require university administrators to provide a campus atmosphere sufficiently simpatico to students in certain classifications (race being one such category) so that the teaching-and-learning enterprise is not unduly disturbed. This claimed exception to free speech clearly does not apply for three reasons:

One – The singers did not utter their words directly to any African-American students; they sang the words among themselves, encased within the walls of the racially segregated fraternity bus. The chant got to the ears of the multi-racial student body because it was recorded – presumably surreptitiously – and leaked out to the world.

Two – The academic campus is a community quintessentially designed to discuss, argue, and deal with controversial, even disturbing ideas and words. It is precisely because the University of Oklahoma is an institution of higher education, where students are presumptive adults, that the “hostile educational environment” claim fails.

Three – No regulation by an administrative agency (the DOE, in this case) can take precedence over a constitutional right, period. If the “hostile educational environment” is interpreted as applying to the use of the “N-word” in a chant not directed to any African-American students, the regulation cannot be enforced because it would conflict with the superior command of the First Amendment, which trumps statutes and mere regulations.

So, one may ask, if expulsion or other punishment is barred by law, what is to be done? Boston Herald contributing columnist and WGBH guest commentator Jennifer Braceras (who appeared on “Greater Boston” minutes after I did) wisely suggests the most effective remedy: a sustained program of old-fashioned “shaming.” Is our society so devoid of moral and ethical standards that shaming would not be an effective remedy? I’ve not yet become sufficiently cynical to answer that question in the negative. Indeed, before President Boren had made his expulsion decisions clear to the students, at least one of them had already withdrawn from the university, having come under precisely such heated community criticism. But Boren proceeded anyway, in the classic “holier than thou” fashion that we have grown accustomed to seeing exhibited by insufficiently courageous and principled academic administrators everywhere, to dismiss both students, including the one who had already withdrawn!

Finally, some have suggested “sensitivity training” for students at Oklahoma. Such indoctrination on matters of personal morality is inappropriate in an institution of higher education. When administered at the college level, such programs smack of the kind of “thought reform” that George Orwell has warned us about. I am not prepared to accept such heavy-handedness by academic administrators. The obligation to shame bigots is an obligation that we free citizens undertake voluntarily as a matter of civic duty. We do not need the Borens of the world posturing and ostensibly ridding their campuses of racism by merely protecting us from hearing bigoted language.

Indeed, free speech for bigots serves all of us in an important practical fashion: It lets us know who among us are  the haters and on whom we should not comfortably turn our backs. This is one of the important practical benefits of free speech: It allows us to know where we, and others, stand. No one is fooling anyone else with excessive public displays of piety. Free speech actually has benefits that counter-balance its occasional pain. That’s what freedom is all about.

(Harvey Silverglate, a criminal defense and civil liberties lawyer, is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (The Free Press, 1998), and the co-founder and current Chairman of the Board of Directors of The Foundation for Individual Rights in Education (www.thefire.org). Thanks go to Timothy Moore who assisted in the preparation and editing of this piece.)