Free speech expert says it ‘would be unconstitutional’ if denial is tied to ‘past speech’
Sigma Alpha Epsilon remains barred from operating at the University of Oklahoma, a full decade after a racist chant video led to the fraternity’s suspension.
“Sigma Alpha Epsilon submitted a formal expansion request, which was reviewed by the IFC Executive Council but did not receive the majority vote required to advance,” the university’s Interfraternity Council told The College Fix.
IFC did not provide further information on the reason for denial in response to questions from The Fix. The university media relations team also did not respond to several requests for comment in the past weeks.
Ten years ago, several SAE members were caught on video chanting a racist song about lynching and keeping black applicants out of the fraternity.
“You can hang them from a tree, but they’ll never sign with me, there will never be a [n-word] SAE,” students chant on a bus. The video led to two expulsions.
A free speech expert, who previously criticized the punishment on First Amendment grounds, provided new comments to The Fix.
“If their application is being rejected because of their past speech, that would be unconstitutional, too,” Eugene Volokh with the Hoover Institution said via email.
“But I can’t know for sure, of course, whether that is the reason for the rejection, or whether there are some other problems with their application,” Volokh, a former law professor at the University of California Los Angeles told The Fix.
In an analysis 10 years ago, Volokh wrote: “racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech.”
He also wrote in the Washington Post “speech doesn’t lose its constitutional protection just because it refers to violence,” though it can if there is a “true threat.”
Similarly, the Foundation for Individual Rights and Expression argued at the time the punishment amounted to “censorship.”
“Instead of government crackdowns on a viewpoint, it is far better to let the marketplace of ideas determine the social consequences for racist speech,” Robert Shibley, the executive director of FIRE at the time, wrote in USA Today. “In this instance, the OU members of SAE are not only likely to spend the rest of their college careers as pariahs but to be hounded to the ends of the earth on social media and exposed for posterity on Google.”
FIRE declined to provide fresh comments on the situation deferring to its past statement from 2015.
The national Sigma Alpha Epsilon did not respond to requests for comment. However, it did comment to the OU Daily.
“We are dedicated to learning from our past, actively listening to those affected, and collaborating to make amends, reconcile, and promote a fresh start,” CEO Steve Mitchell said, according to the student newspaper.
The fraternity also reportedly applied in 2024, according to the student newspaper.
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IMAGE CAPTION AND CREDIT: A screenshot of a racist SAE chant video from 10 years ago; ABC News/YouTube
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