Universities choose their students, not the other way around.

You don't get to go here or stay here unless we say so.  Full stop.

You don’t get to go here or stay here unless we say so. Full stop.

Why are people so confused about the right of both public and private universities to select their student body and establish a code of student conduct?

Public universities, as universities that are funded by and answerable to the taxpayers of the U.S. states in which they reside, have to play by somewhat different rules than private universities.  For example, they can’t discriminate on the basis of religion when it comes to student admission or faculty employment, but private sectarian colleges and universities may discriminate.  Also, I’m pretty sure that the god-bags and the crazies that scream at passing students and faculty on the main plaza at Baa Ram U. are there because our campus is a public square, whereas a private university is probably permitted to escort protesters to the borders of campus.

In short, there is as yet no constitutional right to a university education at a particular institution, so public unis–like private schools–are perfectly within their rights to establish codes of conduct for students and faculty alike.  Indeed many would argue that they’re under an obligation to establish and uphold rules for conduct so as to better ensure safe and equitable access to and experience of classroom and campus life.  (Does anyone else remember Gina Grant, the Harvard admit whose offer was rescinded 20 years ago because it discovered that she killed her mother?  Now, maybe her mother needed killing, but that doesn’t mean that Harvard or any other university, public or private, doesn’t have discretion over the students they admit, or over their on- and off-campus conduct.)

Jonathan Zimmerman apparently disagrees, as he argues today at Inside Higher Ed, citing the recent expulsions from the University of Oklahoma and the University of South Carolina for the use of a highly offensive ethnic slur.  Zimmerman, a historian and education proffie at New York University, thinks that universities can’t expel students for speech acts:  

Last week, the University of South Carolina suspended a student for writing the n-word on a whiteboard in a campus study room. The university president explained that the student had violated the Carolinian Creed, which bars “racist and uncivil rhetoric.”

But in the United States, there’s another creed that’s supposed to take precedence over all the others: the Constitution. And the university — not the offending student — violated it.

So did the University of Oklahoma, when it expelled two students last month for leading a racist chant on a fraternity bus trip. The chant referred to the lynching of African-Americans, one of the ugliest chapters in our nation’s history, and the students deserved all of the condemnation they received.

But our university leaders deserve censure, too, for their craven disregard of the First Amendment. Everyone has the right to speak their mind, no matter how much it offends yours. When Americans work themselves into a fine moral lather, however, freedom of speech is always the first thing to go.

Zimmerman cites a few cases of “speech codes” which were struck down by some courts 20-25 years ago, but he completely misses the fact that the vast majority of universities include spoken words as grounds for suspension or expulsion.

Eager to stand up for the alleged right of undergraduates to boast that “there will never be a Ni–er SAE!” without consequence, Zimmerman overlooks the fact that the University of Oklahoma’s Student Rights and Responsibilities Code 2014-15 specifically states that “enrollment in the University creates special obligations beyond those attendant upon membership in general society,” and its first rule of conduct is “abusive conduct,” defined first 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.”  That would appear to cover any non-classroom, non-faculty supervised utterance of any and all ethnic slurs.  And no, being expelled from a state-supported university is not the equivalent to criminal prosecution or government persecution.

If there were any First Amendment case to be made by the Oklahoma students, both of whom have apologized and slunk away, it would probably have been made already.

Take a look at your university code, and tell me what yours says about student speech acts.  My university specifically prohibits “Abusive conduct, including physical abuse, verbal abuse, threats, intimidation, bullying, stalking, coercion, and/or other conduct which threatens or endangers the physical or psychological health, safety, or welfare of one’s self, another individual or a group of individuals.”  It shouldn’t take a constitutional scholar to figure out the difference between discussing the history and current use of an ethnic slur, and the same ethnic slur being used to threaten or intimidate others.  Most of us can walk and chew gum at the same time.

So stop pi$$ing on our universities and telling us it’s raining.

Universities must uphold both academic freedom and liberty of speech, but there is no such thing as free speech without consequence.  The expelled students from USC and Oklahoma should be glad they’re learning this lesson young, before their “free speech” costs them a job, or their safety, or physical or mental health.

Do let me know what your student codes of conduct say in the comments below.  I am sure that Baa Ram U. and Oklahoma are not the only unis who specifically prohibit certain student speech acts.  Let’s hear it!

 

26 thoughts on “Universities choose their students, not the other way around.

  1. Er, to clarify – the ACLU argues that despite their persistence, such speech codes are still unconstitutional. Here’s part of their statement in response to the SAE expulsions:

    “As a state-run institution of higher education, the University of Oklahoma must also respect First Amendment principles that are central to the mission of every university. Any sanction imposed on students for their speech must therefore be consistent with the First Amendment and not merely a punishment for vile and reprehensible speech; courts have consistently and rightly ruled as such. Absent information that is not at our disposal, it is difficult to imagine a situation in which a court would side with the university on this matter.”

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  2. So why do universities have these rules for conduct which include speech? Why, when university counsel are probably the most cautious, careful, CYA-types in the world? Why, if these codes will make them vulnerable to lawsuit after lawsuit after lawsuit?

    There’s a huge difference between expulsion from a university and criminal or civil charges. Can’t the ACLU tell the difference?

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  3. 1) As to why universities still have these rules, I don’t know. I’m not a lawyer, and certainly not university counsel. I know from the sociology of law more generally that practices ruled unconstitutional can persist for decades or longer, and even be enforced, in the absence of some strong and systematic pressure to eliminate them. So it wouldn’t surprise me that university best practice in this area is constitutionally questionable. This explainer from the First Amendment Center discusses the continuation of speech codes after the 1990s decisions.

    2) I agree there’s a difference between expulsion and criminal or civil charges, but that difference seems not to be significant in the eyes of the courts (in the sense that both may be impermissible sanctions for racist speech).

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  4. There may also be alternative legal theories that would justify such codes (or some version of such a code). Because the law is a mess, as usual.

    I guess I mostly wanted to comment to say that the persistence of university prohibitions on hateful speech in speech codes does not imply that universities actually would win a legal fight about their right to expel students for hate speech under those codes. The shift to ‘harassment’ language seemed to be a late-90s response to the early 90s cases that struck down the initial codes, but it’s not entirely clear if the new formulation will pass muster either.

    And I apologize for the many short comments!

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  5. To my non-lawyer eyes, it looks like our code is pretty much about physical violence or direct harassment aimed at a specific person(s).

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  6. At my state university, our code of student conduct specifically states that students join our university community voluntarily and by doing so take on the obligation of abiding by that code. Sanctions are permitted for students who engage in harmful or potentially harmful acts, and this includes not only intimidation or threats but also harassment.

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  7. My university places a lot of emphasis on pastoral care. We have nearly 20,000 students, about 4,000 of whom are living away from home for the first time.

    The student code states that we expect students to not engage in behaviours that endanger their own or others’ safety and well-being. One requirement arising from this expectation is that the University must actively engage with students in community building (mutual respect, tolerance and understanding). Student conduct is very intentionally framed as: we expect this of you, but we have an obligation to support you in achieving it. Very much like academic expectations.

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  8. Historiann, are you claiming that Zimmerman has misstated the law, or are you saying that the law should be different? I’m surprised by the way you frame your argument. True, there is no constitutional right to a university education at a particular state institution, any more than there is a constitutional right to an education (unfortunately), but once a state chooses to make higher education available, each state university is bound by constitutional obligations just like any other state agency. You are correct that “there is no such thing as free speech without consequence” in the broadest sense, but state universities may only hand out consequences in specific situations. Yes, “being expelled from a state-supported university is not the equivalent to criminal prosecution or governmental persecution,” in the sense that people would prefer to suffer the former, but expulsion is a penalty, and the First Amendment forbids government from penalizing a person for the content of his or her speech except in a narrow set of circumstances. The factor that justifies university codes of conduct is not some sweeping right a university has to govern its inhabitants, but its obligation to carry out its educational and cultural purposes, and while universities have “an obligation to establish and uphold rules for conduct so as to better ensure safe and equitable access to and experience of classroom and campus life,” the law demands that inhibitions upon on-campus expression be tailored to fulfilling such obligations.

    The central question is what expression a state university may prohibit that may not be prohibited by government in the outside world. If the Oklahoma code authorizes the university to penalize students for “any non-classroom, non-faculty supervised utterance of any and all ethnic slurs,” then it clearly is inconsistent with the First Amendment. Can anyone cite a case in which a federal court has held that the Supreme Court’s *Tinker* exception authorizes a university to penalize students for off-campus speech? You are wrong to say that if the expelled SAE students did not complain about a First Amendment issue, then there is none to raise. The key legal point about the SAE brothers’ performance of that reprehensible song is that their speech does not fit into any of the established exceptions to First Amendment protection.

    I would expect that many state universities have provisions in their codes of student conduct that would not pass Constitutional muster, though I would blame this on sloppy thinking and writing rather than on the “political correctness” of which people on the Right sometimes complain. Even the faculty’s Collective Bargaining Agreement at my university has provisions that could easily be applied in ways that would be illegal. For example, it includes the familiar AAUP line that faculty “should at all times be accurate, should exercise appropriate restraint, [and] should show respect for the opinions of others,” but I doubt that the standards set by the Supreme Court in *Pickering v. Board of Education* (1968) and related cases would permit a university to penalize a faculty member simply for failing to “show respect for the opinions of others.” (For which I’m glad.)

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  9. I know very little about the First Amendment, but is there not an exception for when the government acts as an employer, rather than as the state. IE, it can regulate its workplace environments, both in terms of restricting speech (like holding state secrets) and stopping harassment of its staff (just like other employers). The university here is a workplace and so codes of conduct apply. In this sense, the university is acting as a private employer, not a state organisation.

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  10. A very interesting post Historiann.

    I went and looked at the Lake Woebegone State student code of conduct for the first time in ten years. I was surprised that most of the proscribed conduct dealt with things like: sexual assault; drug possession & sales; damage to property; hazing; theft, vandalism, fraud (including false statements on applications for admission) and Academic Dishonesty. There is not a whole lot of intellectual policing going on in our code, its about stupid shit people might do in their twenties.

    There was only one part of the code that could apply to the SAE-Oklahoma incident. It explicitly states that physical or verbal abuse, threats, intimidation and harassment were all prohibited. The rule ends with “and this includes fighting.” Interestingly enough, the code also applies to off-campus conduct, especially if its associated with a University activity.

    What was interesting to me about our code of conduct is the fact that all the proscribed behavior was listed in Article 2. The much longer Article 1 includes definitions, but also a preamble that laid out the principles of the code in terms of Student rights and responsibilities. Article 1 in the code explicitly affirms the students’ right to free inquiry, speech, and assembly. But it also lays out responsibilities to other members of the university community, including respect for their rights and property and the property of the university.

    I don’t think Zimmerman actually knows the law or the codes of conduct that came out of these lawsuits since the 1990s. I don’t either, but from what I recall, while the courts struck down some codes of conduct in the 1990s, they also held that those codes could be rewritten in such a way that they did not violate the first amendment. If student codes in general were ruled unconstitutional, I am sure they would been challenged in the last two decades.

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  11. Hard to know who to side with in the SAE expulsion, but I agree with Daniel Hirschman that because the University of Oklahoma is a unit of state government, expulsion from it is a penalty from the state. And I have trouble following how the ugly words and actions of the frat members severely and pervasively harmed the OU environment, in contrast to what I think really happened: SAE members laid bare what the environment contained.

    Feminist Avatar is right about government as an employer, but the fratboys weren’t Oklahoma employees.

    All that said, the First Amendment certainly does not deliver unlimited freedom to say what you like without consequence. The best example of government-backed silencing of speech is probably copyright, a set of legal rules that duct-tape our mouths and eyes for private gain. There’s also fraud, defamation, lying to an investigating officer, on and on.

    I have no problem silencing the n-word when it’s used to communicate nothing but inarticulate hatred of an oppressed minority.

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  12. I wonder if as states provide less and less support for public universities, the idea that expelling a student for something like this constitutes “a penalty of government” will disappear. At some point private universities might get more money from federal financial aid than public universities get from states; will that make a difference?

    This article from Inside Higher Ed talks about the shifting tuition vs. state support balance:
    https://www.insidehighered.com/news/2015/04/13/report-shows-public-higher-educations-reliance-tuition

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  13. Feminist Avatar, there is no exemption from First Amendment obligations that covers all of a government’s acts carried out as an employer, if that’s what you meant. The U.S. Constitution does not prohibit a private university from penalizing an English professor because he writes blog posts condemning (or endorsing) Rand Paul, but the Constitution prohibits a public university from doing that, just as the Constitution prohibits the University of Illinois from declining to hire Steven Salaita because of his tweets. The First Amendment does not prohibit a state agency from penalizing a state employee from expression made as part of his or her duties, though obviously that application of that principle to university faculty is still up in the air.

    af, a public university counts as a state actor no matter how little money it receives, and even a “private” university counts as a state actor when it is funded by the state (e.g., the University of Delaware).

    LadyProf, it is established law in the U.S. that a public agency is forbidden except in certain circumstances to “silenc[e] the n-word when it’s used to communicate nothing but inarticulate hatred of an oppressed minority.” There is no categorical exemption from First Amendment protections for hate speech or even harassment as such, though there are categorical exemptions for three kinds of utterances in which racial epithets often play a role: “fighting words,” “true threats,” and “advocacy of the use of force or of law violation” when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (These are “content” exceptions, not “time, place and manner” exceptions.) The crucial case concerning the distinctive rights of schools to restrict speech is Tinker v. Des Moines Independent Community School Dist. (1969), in which the Supreme Court held that the First Amendment forbids school officials from prohibiting expression “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” (Notice, however, that this case involved a high school and a junior high school, not a university.) Regarding what we might call the copyright exception to the First Amendment, we should remember that it is written into the Constitution, and that reconciling the two provisions is, well, controversial.

    And yes, Matt L, Zimmerman is very confused and imprecise.

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  14. EngLitProf, wasn’t it clear when I said I had no problem with suppressing a particular word that I was giving my opinion about what ought to be, not stating “established law in the U.S.”? Our host took a fresh look at old rules; I was following her lead.

    The epithet starting with N certainly can express ideas. I support the right to this expression even if I happen to loathe the ideas being shared. But when there’s no articulation of an opinion, or perspective, or point of view–just brainless hatred and nothing more–and it’s reasonable to believe people are being harmed by this noise, I think the government may silence the noisemaker. I also think it would be easy for a court to apply this analysis.

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  15. Thanks to everyone who has contributed here–I apologize for going AWOL in all this, but I posted right before hitting the road to give a few talks at the U. of Toledo, and thought I’d have more time to participate in the convo.

    I appreciate the legal issues EngLitProf raises, but I’m unconvinced that speech acts can be completely divorced from “abusive conduct” or “bullying,” which are clearly prohibited by the CSU and the OU codes of conduct. Hostile speech would seem to be central to both of those kinds of abuse.

    I’m no First Amendment scholar (clearly!), but as I recall there’s no such thing as completely consequence-free speech (the “shouting ‘fire’ in a crowded theater’ exception). And I think judges and juries can clearly recognize the difference between what happened at Oklahoma with the SAE bus ride vs. the other utterances described by EngLitProf. Most reasonable people can tell the difference between a legitimate intellectual exchange and an abusive one.

    N.B. I never thought Salaita had a First Amendment case, but rather an academic freedom case. Moreover, none of his Tweets were anything close to the hostility and abuse in the OU SAE video. Again, walk/chew gum: WE CAN DO IT!

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  16. And I will note that as awful as the students involved in the SAE song were, both slunk away pretty quickly in spite of all of the claims by First Amendment absolutists that they have a case against OU.

    I guess even obnoxious white college students caught on tape can walk and chew gum, too.

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  17. I’m sorry that I’ve gone on too long, and I’m sorry to go on too long again, but I have to say that I have always been grateful for the fact that a large percentage of U.S. universities are bound by the First Amendment, a fact with lots of benefits for faculty and students, and few disadvantages. Sometimes I wonder if it would be a good thing if private universities were to vow that they will act as if they, too, are bound by the First Amendment. (I also think it might be good if private companies were to act if they are state agencies bound by the Equal Protection Clause, but that’s another matter!) To the extent that Zimmerman’s point is that public universities should make sure their policies and their decisions are consistent with Constitutional protections, I agree with him, even though I have difficulty discerning what he wished to argue beyond that.

    You cite academic freedom, but that often has no weapon better than the First Amendment. Take the Salaita case. Even if Salaita’s academic freedom matters most to you or me, the law treats individual academic freedom as a matter of contract, and it can play only an indirect role in his lawsuit. If we value academic freedom, then we want universities to be discouraged from pulling this kind of shit, and Salaita’s best route is his First Amendment claim. Even if Salaita legally never was a tenured member of the University of Illinois faculty, the university unquestionably made a decision in which Salaita’s protected speech was the “but for” cause. I’m also thinking of Robin Meade, the adjunct who are fired by a community college simply for writing a letter to an external agency on a matter of public concern, the working conditions of adjunct faculty. If Meade had taught at a private university, she would have no recourse.

    So here is my question: do faculty and students suffer a net loss if they are at universities which must make certain that their codes of conduct do not restrict Constitutional rights unjustifiably? If I am at the University of Oklahoma, should I regret that the U. S. Constitution almost certainly forbids the university from punishing the SAE brothers specifically for their speech? (The president of the university indicated that the students were expelled for their song alone, as I remember, not for other transgressions.) The fraternity would be in hot water anyway, justly. Even if you or I wish that the Warren Court had interpreted the First Amendment in such a way that it would protect Salaita’s tweets but not the SAE brothers’ smug endorsement of racism and complacency about racial violence, I doubt public universities suffer greatly because the Court made different choices. It’s a package: *Pickering* protects Salaita’s tweets, and *Tinker* and *Brandenburg* together protect the SAE brothers’ song.

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  18. Except, EngLitProf as soon as you look at both of these incidents, they aren’t being pursued as “First Amendment cases.” The only one that is being litigated is Salatia v. IU.

    Salatia is taking UI to court over a contract dispute, which yes, involves some speech that pissed off donors who threaten to sanction the university if they followed through on their contract to hire him. The academic freedom issue involves not just Salatia’s speech, but also (and perhaps more importantly) the question of whether the IU administration followed their own rules for hiring and firing faculty.

    The SAE frat was kicked off campus because of their racist speech in the video. They might be able to sue under first amendment and win in court. But the university could also go through and use the initial incident to investigate the SAE chapter for systemic discrimination, kick them off campus again and this time it would stick because they would find a pattern of systemic discrimination and harassment. We are all adults and know damn well that the video is not an isolated incident by a few bad apples. SAE would not benefit from a court case, because that would make the expulsion permanent. If they just let the dust settle then the

    Then there are the students who were expelled from UO. The President said he was going to expel them, but the left the university before they could be expelled formally. Sure, they might have a free speech case. Maybe they could win, but they would be spending an awful lot of time fighting that case through the courts when the might be better off going to college someplace else. What would they win? So that five years from now they could enroll at OU? Or a cash settlement? And their name would come up in more and more google searches the longer the case went on. That can limit their careers more than withdrawing from OU their freshman year.

    Finally, I to answer your question, I don’t see why the University should protect a racist taunt sung by a bunch of guys as some sort of sacred expression of free speech. I think that is a silly proposition, especially given the history of racial violence in Oklahoma and the history of racial discrimination by SAE. You can’t say openly racist shit at a university. It does wreck the learning environment of all students. You could say, well, this is a teachable moment, where an individual engaging in racist taunts ought to be given some mix of community service and education about why their speech was offensive and harmful. But a university should be able expel members who behave egregiously. I don’t see that as inhibiting the free and open discussion of race, racism and discrimination in the classroom or in the university community more generally. I don’t see it as inhibiting their free speech. SAE is now off campus and freely able to rent busses and drive around Oklahoma singing their racist songs without anyone being able to say boo.

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  19. Word, Matt L.

    The boys can do whatever they want on their buses or in their private, non-University affiliated clubs. They just can’t do it with the imprimatur or the implicit sanction of the University of Oklahoma.

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  20. When I was attending law school, I opened my locker one day around May or June of 1999 and found a racist flyer. It was covered with crude cartoons depicting Jews as snakes and black people as gorillas. Later on, it emerged that the flyers were distributed by one Benjamin Nathaniel Smith, whom you can read more about here: http://en.wikipedia.org/wiki/Benjamin_Nathaniel_Smith.

    At first I was frightened. I have a Jewish last name — had I been deliberately targeted? But no, it turned out that everyone who had a locker in a certain area of the basement had gotten one.

    People used the free speech argument then, and I’m as unconvinced now as I was then. Was this person coming forth to have an academic dialogue with anyone? Of course not, his “speech” was an act of hit and run thuggery, for which I and others were supposed to absorb the emotional damage caused by the exercise of his “rights.” You can see how that turned out.

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  21. I’m curious what arguments were advanced that this was clearly a legally defensible form of speech. One issue here is that recipients very well might do as you did and assume they had been deliberately targeted. That’s gets us into the territory of speech that is absolutely *not* protected.

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  22. The arguments were the usual ones. Racist flyers are speech, and for the school to ban them or punish the offender would have a chilling effect on academic discourse. The school can’t limit this speech, because it’s a public school and that would be government action contravened by the First Amendment. The school has authority over the locker and uses it for its own message dissemination, so that makes it a forum for message dissemination by anyone that cannot be regulated by viewpoint. Minority members need thicker skins; it just shows how weak they are when they run for the protection of officials. All ideas are worthy of a hearing, no matter how vile — driving this kind of speech underground is bad for society. You know.

    People stopped talking about it after the killing spree, for some reason.

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  23. I’m sure you know where I was going, that the incident as you described it arguably qualified under the “true threats” or “fighting words” exceptions.

    I don’t get how the university’s using a medium for its own dissemination of messages makes it a public forum. If a university permits students to write on the university sidewalks “X is good” they have to permit students to write “X is evil,” but they are not obliged to permit students to write on the sidewalks.

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  24. I don’t believe these flyers would fall under a “fighting words” or “true threats” exception. There was no possibility of confrontation, because it was a cowardly hit-and-run expression. They didn’t threaten, and there was no immediate danger promised. That there was actually real danger in the message was not communicated at the time and was only clear in retrospect. Perhaps you don’t like the result, but this is the collateral damage of so-called First Amendment absolutism.

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  25. I’ll take your word for it that these racist and anti-Semitic flyers (which evidently were distributed to students in such a manner as they were likely to believe they had been singled out to receive them) did not constitute a true threat. There are also “captive audience” issues, I would think–my right to be able to avoid being exposed to offensive speech. But it sounds to me as if some people at the law school applied principles in a lazy manner.

    By providing a contrast, the story you’ve told illuminates an important point about the despicable song of the SAE brothers. If their singing constituted a “racial taunt,” as someone asserted earlier in this discussion, things would be very different, but taunts by definition must be directed at a person or people who are objects of the expression.

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