Saturday, March 14, 2015

The Sigma Alpha Epsilon Frat Boys at Oklahoma Deserve All the Retribution They Receive, But ....

The Sigma Alpha Epsilon frat boys deserve everything they get, but …. Their charter bus ride was both racist and stupid, but …. The use of the “N” word in the chant’s context was clearly racist, but no matter how offensive, the word is not illegal. The nine second video exemplifies the legal phrase Res Ipsa Loquiter, “The thing speaks for itself.” The riders were clapping and pumping their fists: “There will never be an N… in SAE. You can hang ‘em from a tree, But he can never sign with SAE.” Even racist, sexist, and homophobic speech is protected by the First Amendment, no matter how vile, disgusting, or despicable. The fraternity’s conduct was stupid for three reasons. First it occurred on the weekend of the nationally celebrated 50th Anniversary of the Selma to Montgomery Marches. The timing was horrific. Second, everyone, but especially teenagers, should know that in any gathering today of two or more, someone could be taping the occasion on a cell phone. Students are shocked not only by the racist conduct, but also by how blatant, or stupid, it was, especially the taping. The brothers were on a bus with their dates to a formal party celebrating SAE’s Founder Day. A video of the tape was emailed to The Daily Oklahoman, the campus newspaper. Apparently one of the brothers, or was it a date, was not fraternal and leaked or posted the offensive chant. The rest is history. The national promptly yanked the chapter’s charter and is expelling all the members. The University of Oklahoma’s revered President David Boren was outraged. He ordered the frat house closed and the residents out within two days. Two of the leading chanters, Parker Rice and Levi Pettit, were expelled. He wants to expel the other frat boys on the bus, but would that also include their dates. The Tri Delt Sorority denies its sisters were involved. His letter to the students said: “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. 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.” No matter how justified President David Bowen was in expelling the students and tossing SAE, the University of Oklahoma is a public university and thus bound by the Constitution. The First Amendment protects Freedom of Speech while the Fifth Amendment provides substantive and procedural due process. University speech codes have been struck down under the First Amendment. Similarly, the “hostile learning environment” clause will have a chilling effect on speech. A public university cannot arbitrarily expel students without providing due process. Similarly the power of the University President to evict a fraternity from the House, which is presumably private property, is highly questionable. The Oklahoma is the third campus incident, which has aroused popular outrage. The first was the 2006 Duke Lacrosse case, where a stripper accused three white Duke lacrosse players of brutally raping and sodomizing her at a team party. A rush to judgment ensued. The coach was forced to resign. The team’s season was cancelled. Three players were arrested. 88 Duke professors, the “Group of 88,” signed a letter critical of the team. The inflammatory accusations turned out to be a fabrication by a troubled woman. Duke University wrote large checks to the three students and the coach. The second incidence was last November when an article, “A Rape on Campus,” in Rolling Stone magazine claimed a freshman coed was raped in September 2012 at the Phi Kappa Psi fraternity house at the University of Virginia, and that the University’s Administration was hostile to the victims of sexual assaults. A campus and national uproar ensued. UVA President Teresa Sullivan suspended all fraternities until January 9, 2015. The story was a fabrication. And now we have the third rush to judgment for fraternity and athletic misconduct. The difference is that a video factually supports the University’s reaction this time. And yet, we have a presumption of innocence and that there are two sides to every story in the law. That does not occur in these rushes to judgment. The chapter’s alumni retained Stephen Jones, the prominent Oklahoma attorney who represented Timothy McVeigh and several public officials accused of misconduct. He’s not currently representing the two expelled students, but otherwise succinctly summed up the legal case: “Obviously, there are issues about First Amendment Rights, due process and real estate issues ….” This is not a case either party will wish go to trial. SAE does not need any additional adverse publicity. It has too many documented incidents at other chapters. Discovery would be brutal. However, the University cannot risk losing the case. If a lawsuit is brought, ironically, under the Federal Civil Rights Act, then the University will be subject to enormous legal fees.

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