Hmmm. I looked at the letter again, and it says “you should be expelled” and “you will be expelled.” It does not say you are expelled, or you have been expelled. So, what if they both voluntarily withdrew from OU before anybody actually got around to expelling them? Perhaps in such a situation, they will never be expelled, and their records from OU will simply say “withdrew.” Of course, all the media reported that Boren expelled the two students. But did he?
I agree that Parker Rice’s apology was fine. He admitted what he did was wrong and he knew it, he expressed remorse, he said he wouldn’t do it again. So much better than those weaselly no-pologies where the perpetrator says that they’re sorry if anyone was offended by their patently offensive words or actions. What else we could have reasonably expected from him is not to have sung racist songs in the first place, but that’s water under the bridge.
(link previously supplied by Bay)
Watch the video. The reporter from the Tulsa World says both students withdrew.
So, what we may see if this continues to get press is a face-saving statement by Boren that what he really meant was that he intended to begin expulsion proceedings against these students, and of course they would receive due process, but his letter was misconstrued, and of course free speech blah blah blah. Meanwhile, the students will do their best to disappear and go to college somewhere, perhaps without an expulsion on their records.
OU would lose for expelling the two students, if they were in fact expelled, which now doesn’t seem to be the case, but they should be in the clear for having students vacate a house that was rented to the now-nonexistent OU SAE chapter.
If a the President of a university informs a student in writing that he has “determined you should be expelled,” it is arguable that any subsequent withdrawal is “voluntary.” But that argument is probably water under the bridge.
Boren doesn’t need to save face. Pointy-headed law professors and people like us who want to know what the law actually is will think that he wouldn’t have been justified in summarily expelling the two students, but so what? He doesn’t need to save face with us. Boren already won the PR battle.
I have been thinking about that as well. My son’s fraternity house is owned by the university, so his lease is made directly with the university student housing office, just like the dorm rooms.
One would need to see the terms of the OU lease agreements before opining on whether Boren had the authority to summarily evict all SAE occupants for this incident.
The postings by here also underscore an article I read some years ago by an attorney in a publication for lawyers pointing out how far too many lawyers and clients taking a blinkered legalistic view end up hurting their clients/themselves in the longer term because they ignored or discounted non-legal factors such as negative PR or disclosing information best kept discreet/private.
The author’s point was even if one has a strong legal case and ends up winning the battle in court, the serious sometimes irreparable damage to one’s business and/or personal reputation if one proceeds with a suit is such it may ultimately be against the client’s overall long-term interests and not be worth the court victory or court awards/settlements.
That seems to be the case if the two students who were initially reported expelled and now known to have withdrawn and their families decide to launch a suit against Boren and OU. As it is, they and their family’s names/identities are all over the interwebs. Filing a suit in court would only aggravate that as it would generate additional information in to the public record.
"To my eyes, it looked like Boren was trying to shield himself against personal liability for his actions. "
Nah. Just a rhetorical flourish.
Davey Boren of Norman, OK has absolutely zero power (as an individual private citizen guy) to do anything on behalf of OU.
The action is obviously by the OU President on behalf of OU. As evidenced by the use of OU letterhead, signing the letter as DB, President rather than DB, and the fact that the action of expelling a student is only one that can be taken by an OU official.
Even without the flourish, DB is acting in his official capacity and has a right to be indemnified so long as he meets the relevant standard (something like acting in good faith and reasonably believing it is in the best interest of OU).
By the way, DB and OU has zero legal exposure here. Not because of the SCOTUS first amendment precedents but because the two guys are never ever ever going to sue. Withdrawing before getting expelled is a clear indicator of their totally weak legal stance.
Not at all. It’s smart personal planning.
IFF indeed they were allowed to withdraw, that is all their transcript will say, and they can easily apply to transfer. If they were expelled, they’d have to sue to get their transcript changed, and that could take months…
@northwesty - as a practical matter, I completely agree with all the points you bring up. It’s quite rare that government officials are found personally liable.
But there was a case a few years ago where a college president was found personally liable, and there are definitely some common fact patterns - expelling a student summarily and violating their due process rights. He claimed to be acting in good faith and in the interests of the institution, but he was still found personally liable. Here’s a link
http://www.huffingtonpost.com/greg-lukianoff/breaking-federal-jury-fin_b_2601036.html
ADDED: Expelling two students (if they were in fact expelled) without even holding a hearing might be considered sufficiently egregious to merit being found personally liable.
Still, my guess is that Boren really wasn’t that worried, but if you’re going to draft a letter why not include the belt and the suspenders anyway. It would be interesting to see whether similar letters that he’s drafted included this phrase or not.
It doesn’t matter whether Boren states that he is acting in his official capacity or not. Government officials can be held personally and civilly liable for their actions if they are in aggregious violation of the law. We touched this early in the thread.
Instead of looking at this legalistically, look at it in game-theoretic terms. It was in Boren’s interest and the two students’ interest for him to posture on behalf of the university and for them to quietly withdraw.
And I just don’t see how the SAE alums are going to decide it’s a good idea to sue the university. Do they really want to be seen as the fraternity that sued for the right to be racists? Who wants to attach their name to this lawsuit, other than the lawyer who defended Timothy McVeigh? I hope they do sue, because I’d find it entertaining, but I think they’d be crazy to go through with it.
They probably won’t sue due to the expense.
And in all but the most extreme cases, an official is going to be reimbursed/indemnified by the school. And extreme means something like intentional wilful misconduct not in the interest of OU. So long as there is a fig leaf of a legal basis, no problema.
Because that’s what the university’s corporate documents say. And also what the official’s employment contract says.
Al – I certainly could see a CYA, belt/suspender university counsel putting those self-serving words in the letter if he was aware of the prior case. But that wording would not be outcome determinative.
Since we know the frat guys will never ever ever sue, OU and DB are totally clear.
Let’s imagine for a minute–and this may take some imagination–that you are an OU SAE student who has never heard the chant in question. Nobody taught it to you, and you weren’t on the bus where it was chanted. You would be happy to have black members in SAE, and are surprised to learn that others don’t feel that way. So what happens to you? You have your membership in SAE revoked by national, your chapter has been dissolved, and you are told you have to vacate your housing–which is university housing, for which you have paid–immediately, and the university will not help you find other housing, as the end of the semester is approaching. If that was your situation, you might want to sue somebody.
I have to say my opinion of this situation has shifted a bit more after finding out that there were five separate buses on the night in question. To me, that calls the collective punishment element of this into question more, at least until some basic level of investigation was done.
Yes, Boren would likely be reimbursed for any monetary damages. And he is old enough that his career won’t suffer if he is deemed to be a public university president who throws Constitutional rights out the window in favor of good PR.
I would also like to hear from some of you lawyers about obscenities being excluded from free speech rights. I distinctly remember a case from a few years ago where some kid flipped off a cop (and I think, also used the F word) and it was ruled that that was covered under free speech doctrine.
What is considered an acceptable obscenity and which ones are not acceptable?"
On the other hand, assuming that these oblivious students do exist, if you were one of the students who did know about the chant, you so very much do not want these oblivious students to sue. And if you are the SAE national, you also don’t want this guy to sue.
I’m wondering, though, under what circumstances this song-- which was taught to the two students by other students who knew it-- got sung, such that Mr. Oblivious never was taught it and never heard it. Apparently it got sung from time to time with gusto, because the guys singing on the bus (and it wasn’t just the two leaders singing) knew it well.