‘Voluntary’ Departures: the New Expulsion?

Legal experts ponder whether public universities can ask students who are racist or who misbehave to leave. Has this become the new strategy to avoid kicking them out and facing First Amendment backlash?

January 28, 2019
 
University of Oklahoma president James Gallogly

This article contains explicit and potentially offensive terms that are essential to reporting on this situation.

At a news conference last week, University of Oklahoma president James Gallogly addressed a racist video that had circulated campus -- a brief clip that led to the two students featured in it withdrawing, campuswide rallies and a call for Gallogly’s resignation. One journalist there asked Gallogly a question akin to, were the two students in the video -- which featured one in blackface using a racial slur -- given an ultimatum? Voluntarily leave the campus or else?

Gallogly didn’t give a yes or no. He said that the two young women left of their own accord.

“They could see that our culture rejects this kind of activity in no uncertain terms,” Gallogly said at the conference. “I think it became very clear to them that this kind of behavior is not only local news but state news and national news. I think they’re very surprised by the reaction. Simply put: this kind of racist video has no place here or any place else.”

The question from the reporter was particularly pertinent. Demands that administrators expel the two students came from both in and outside the campus. Students and professors wanted answers for how Gallogly would fix the continual problems with racism they perceived at the university. This incident reminded many of when a campus fraternity was caught singing lyrics with racial epithets in 2015. Two fraternity members were expelled for creating a hostile environment.

As a public institution with First Amendment obligations, Oklahoma was relatively limited in how it could punish the students for repugnant, but protected, speech. (The president of Tufts University, a private institution, said last week that the institution was investigating an allegation that a student posted a photo of herself in blackface on social media and that she would face "appropriate disciplinary processes.")

If officials at Oklahoma had urged the women, even gently, to leave the institution, it could have violated their free speech rights, experts say.

This scenario hasn’t been confirmed. Outside of written apologies the students have released, they haven’t given media interviews. In an interview with Inside Higher Ed, Gallogly said that he never met personally with the two students, but that student affairs officials were in contact with them. When asked if the students had been asked to leave the university, or given any sort of suggestion that they do, Gallogly said he wasn't "sure of all the details of those conversations." He said he believed that the officials consulted with general counsel before interviewing the students, one of whom withdrew almost immediately after the backlash. The second student wanted to think it over, Gallogly said.

In an age of social media, when students’ acts of racism have become much more public and administrators are pressured to respond, the perpetrators “voluntarily leaving” can remove a tricky legal bind for presidents. They most likely wouldn’t open themselves up to a lawsuit if the students left, but they may have if they kicked the students out, experts said.

“If you had a public university that sought to remove the students via other means and the students demonstrate there was essentially an ultimatum -- explicitly or implicitly, like "we can do this the easy way or the hard way" -- that might raise First Amendment questions,” said William Creeley, senior vice president of legal and public advocacy at the watchdog group the Foundation for Individual Rights in Education.

Even a subtle suggestion -- a veiled threat -- from an administrator that a student should withdraw could be grounds for legal action, depending on the facts of the case, Creeley said.

Creeley said that FIRE has “heard rumblings” of students being asked to leave, but nothing he could disclose. Students under fire for racist acts may be disinclined to publicly pursue complaints if their First Amendment rights were infringed because they’ve already been embarrassed, he said. But they need to take the initiative.

“If there is a First Amendment violation, someone [must be] willing to stand up and claim it,” Creeley said.

Of course, in the Oklahoma case, it’s possible that the students -- whose names are Frances Ford and Olivia Urban -- left of their own volition. Their social media pages were widely shared (their online presence has since been scrubbed) with internet commentators urging the public to contact them and the university about their behavior. Ford, who was a member of Oklahoma’s chapter of Delta Delta Delta sorority, “was no longer a member,” the chapter also said in a statement, and called their conduct “disgraceful.” The sorority president did not respond to request for comment.

In the leaked video, Urban is in blackface and declares “I’m a nigger,” in a cartoony voice while Ford laughs in the background.

The students in their apologies wrote that they regretted their actions.

“My intent was not to hurt, diminish, or degrade anybody inside or outside the OU community,” Urban wrote. “I failed to consider at the time that my moment of ignorance disrespected a lifetime of hurt due to actions like mine in the past.”

Gallogly said that "no matter how reprehensible" the speech, it was covered by the First Amendment. He said that the university has formed a committee -- which will include its general counsel, a law professor and constitutional expert, and an African American studies professor -- to examine whether its conduct code is deficient in addressing these types of scenarios.

While some in the public have criticized administrators for taking political stances, it is perfectly appropriate for them to teach students “civility and mutual respect,” said Geoffrey Stone, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and a First Amendment scholar.

“If a student does what these students did, it is therefore acceptable for the university to make clear that it regards such behavior as uncivil, disrespectful and hurtful,” Stone said. “My guess is that the decision of the students to leave the university was less the result of the university's statement than of their recognition that they would be condemned openly and vigorously by other students. Their continued presence at the university would be miserable, to put it mildly.”

Gallogly noted that he is relatively new in his presidency (he only took over in July) but that he has been on campus since April and he and his wife lived in a dormitory before moving into the Boyd House, where the president lives, and heard students and staffers' concerns about campus racism. Shortly after his tenure officially began, he asked the colleges to put in writing their diversity and inclusion efforts so he could see what changes could be made. Gallogly also pointed to the Crimson Commitment, a scholarship program that covers not only tuition, but fees of low-income students and which he said will improve campus diversity. Gallogly has also committed to recruiting more students and staffers of color.

He has already faced pressure to resign -- a former dean who was removed from her position called for him to do so last week. Gallogly said in his response to his critics that he doesn't want "to make excuses" but will work to prevent "this from ever happening again."

This has happened before at Oklahoma. Many have drawn connections between the incident and the expulsions of the two fraternity members in 2015 over racist chants. The campus chapter of Sigma Alpha Epsilon was shut down after its members were recorded singing, “There will never be a nigger at SAE” to the tune of “If You’re Happy and You Know It.”

Oklahoma’s president at the time, David Boren, justified the two students’ dismissal by saying they had created a “hostile educational environment,” the same legal standard in Title VI of the U.S. Civil Rights Act. Gallogly said that with the fraternity brothers, the episode had occurred on a campus trip, as opposed to off the grounds entirely. Lawyers have said, though, that the students may have been able to stay at the university had they pursued a First Amendment lawsuit.

Legal experts argued the same for a University of Alabama student who was reportedly kicked out of the institution after her racist rant -- a video which she said she “fucking hates niggers” -- went viral on campus. Constitutional scholars told Inside Higher Ed that the student, Harley Barber, would have a “strong case” in suing.

On Wednesday, the Oklahoma campus was roiled again after students reported seeing a man wandering the grounds in blackface. A video of the individual was posted on social media. The university has not determined whether he is a student or an outsider.

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