Posted in Civil Rights on March 10, 2015
Following the release of a short video which captured racially charged content in a fraternity chant, the Sigma Alpha Epsilon Fraternity at the University of Oklahoma is no more. Riding on a party bus, the chant was captured which included some disturbing racial slurs including “there will never be a n—– in SAE.”
The actions of the university and its president were quick and decisive. President David Boren banned SAE from the campus and ordered that everyone be removed from the SAE house by Tuesday night. In addition to showing quick resolve against the fraternity, Boren issued this statement, “I hope that students involved in this incident will learn from this experience and realize that it is wrong to use words to hurt, threaten, and exclude other people. We will continue our investigation of all the students engaged in the singing of this chant. Once their identities have been confirmed, they will be subject to appropriate disciplinary action.”
Local news reports on Tuesday, March 10, 2015, stated that two members of the SAE fraternity which were on the bus and “played a leadership role” in the chant have been expelled. There are further indications that if additional persons are identified from the brief video, that those students will face disciplinary action as well.
While the fraternity is subject to university scrutiny and its own charter or SAE national organization, the university’s decision to remove everyone from the SAE house on campus probably does not trigger any constitutional issues. However, when the discussion moves from housing to individual students being disciplined through suspensions or expulsions, the constitutional due process concerns become more interesting.
The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. In the context of such a denial, the general rule of thumb is that the more serious the denial, the more due process should be afforded. But what does that mean?
The Supreme Court has previously held that a student accused of wrongdoing with the potential to result in a suspension or expulsion should be provided, at a minimum, an informal hearing to at least advocate and tell his or her side of the story. A school must inform the student what he or she is being accused of and the underlying basis for the accusation. The Court reasoned this was to prevent arbitrary exclusions from school. In discipline that amounted to less than 10 days of suspension, the Supreme Court held that this lesser notice and opportunity to be held was appropriate.
Interestingly though, the Supreme Court held if expulsion or extended suspension is at risk, a student is entitled to a formal hearing before an impartial body. At this hearing, the student may have a lawyer present and cross-examine witnesses.
The Court does recognize in circumstances where the public (or other students) may be at risk due to the danger presented by the offending student’s conduct, that the individual’s removal prior to notice and hearing may be required. But even in these cases, an appropriate hearing should happen as quickly as possible.
The debate can and will continue as to whether the conduct and speech of these students constituted a dangerous risk to others. And, at the time this is published, it is not known whether the students were provided appropriate notice or a hearing prior to their removal. While the conduct and speech that these students (and most likely others) engaged in is reprehensible in every manner, the offending conduct and speech cannot excuse the constitutionally protected due process rights secured by the Constitution.
This may be especially important to consider against the backdrop of other conduct that the University of Oklahoma failed to find dangerous, if even addressed, which could have arguably warranted expulsion or suspension based upon a perceived risk to other students. On July 25, 2014, Joe Mixon was arrested following an altercation at a local eatery in Norman, OK. During this altercation, Mixon was seen on a security camera punching a female university student in the face thereby sending her to the hospital. Mixon was suspended from the OU football team, but was allowed to continue as a student and continued to receive his financial aid.
There is no excuse for Mixon’s conduct. There is no excuse for the repulsive conduct of the students participating in this vile, racial chant. But we have constitutional safe guards in place to protect individuals from the government arbitrarily infringing upon civil liberties. Making sure that every person has a right to due process is fundamental.
But what if the students violate university policy, the student handbook or student code of conduct? Depending on the various policies, handbook or code of conduct that is included, a university may be entitled to provide disciplinary action against a student. But having a student handbook, university policies, or code of conduct should not alleviate a university from providing due process to a student facing discipline. Furthermore, it is not out of the realm of possibility that the student code of conduct or a student handbook may contain provisions which violate or infringe upon a student’s civil liberties.
While the response by OU was swift and the end result of the discipline against these students is a popular one, it is paramount that all due process is afforded to students prior to long-lasting repercussions.
If you have experienced an adverse action by a school or have questions as to whether your rights were violated, please reach out and contact our office at 918-935-2777.