Balancing Public Demand with Due Process: What the University of Oklahoma’s Actions Say about Our Society

Bardia Sanjabi, KLJ Staff Editor

What happens when interest in protecting a fundamental right clashes with general public opinion? Do the Constitution and our legal system kneel to what is and is not socially acceptable? The answer to these questions has become increasingly blurry in light of recent events.

In March, a leaked video displayed members of the Oklahoma chapter of the Sigma Alpha Epsilon fraternity singing a racist chant on a bus.[1] The University’s response to the video was swift and unforgiving, as it severed ties with the fraternity and expelled two of its members implicated in the video just two days after it was leaked.[2] This action drew attention from constitutional law experts, who raised the issue of whether the expulsion of the members was a violation of their First Amendment rights because it was an act by a government funded state institution.[3]

The University, which as a public institution cannot discriminate on the basis of race, will likely justify its actions under its Student Rights and Responsibilities Code, where it lists “abusive conduct” under “prohibited conduct.”[4] Abusive conduct is defined as “unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.”[5]

Unfortunately for the University of Oklahoma, freedom of speech is a fundamental right under the Bill of Rights, and any policy by the state that may hinder this right will come under the purview of strict scrutiny within the courts.[6] There is a strong argument to be made that the chant on the bus, as bigoted as it may have been, remains protected speech by private individuals. Many scholars, including the UC Irvine law school dean Erwin Chemerinsky, seem to be of the opinion that should the expelled members file suit against the University, they will have an “excellent chance” of succeeding.[7]

What is most concerning about this situation, however, is the immediateness and severity of the University’s response. It seems that our society places higher value on intolerance towards bigotry than the due process of our laws. This issue is also apparent in the recent developments of the Mike Brown shooting incident in Ferguson, MO. On March 4th, the Department of Justice released a report that specified they will not be prosecuting Officer Wilson for the shooting due to lack of corroborated eyewitness testimony.[8] No reliable source can confirm that Brown indeed raised his hands in a gesture of surrender, which was a key aspect of the nationwide movement covered by the media demanding justice for Brown’s death.[9]

It is important to acknowledge that prejudice and hate crimes are still noteworthy issues in today’s society. Solving these issues, however, may best be dealt with in a calculated and forethoughtful manner. Emotional overreactions, while satisfying the public’s demand for swift justice, are not stable solutions. Just as the investigation of Brown’s shooting yielded no evidence to prosecute Officer Wilson, the expulsion of the two Oklahoma fraternity members may be reversed should they pursue to challenge the University’s decision on Constitutional grounds.


[1] Terrence McCoy, Why Expelled Oklahoma Frat Boys Would Have an ‘Excellent Chance’ in Court, Wash. Post (Mar. 11, 2015), http://www.washingtonpost.com/news/morning-mix/wp/2015/03/11/expelled-oklahoma-students-have-an-excellent-chance-of-succeeding-if-they-sue.

[2] Id.

[3] Id.

[4] University of Oklahoma Board of Regents, Student Rights and Responsibilities Code 3 (Sept. 19, 2011), available at http://www.ou.edu/content/dam/studentlife/documents/AllCampusStudentCode.pdf.

[5] Id.

[6] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).

[7] McCoy, supra note 1.

[8] Trymaine Lee, Justice Department Clears Darren Wilson in Michael Brown Killing, Msnbc (Mar. 4, 2015, 6:55 PM), http://www.msnbc.com/msnbc/justice-department-clears-darren-wilson-michael-brown-killing.

[9] Matthew Balan, Surprise: CNN Reports ‘Hands Up, Don’t Shoot’ is Based on Falsehood, Cnn (Mar. 6, 2015, 11:31 PM), http://newsbusters.org/blogs/matthew-balan/2015/03/06/surprise-cnn-reports-hands-dont-shoot-based-falsehood.