Easy Cases Make Bad Law
Religion & Liberty Online

Easy Cases Make Bad Law

Earlier this week the University of Oklahoma chapter of Sigma Alpha Epsilon was caught on video engaging in a racist chant. The video shows several men wearing tuxedos and riding on a charter bus singing that black students, which the men refer to with a racial slur, could never join their fraternity. The chant also alluded to lynchings.

Language warning: The video below contains offensive and racist language.

The reaction to this vile, disgraceful video was swift and, for the most part, appropriate. The national headquarters immediately closed the chapter and suspended the members. “This type of racist behavior will not be tolerated and is not consistent with the values and morals of our fraternity,” the national leaders of Sigma Alpha Epsilon said in a statement. David Boren, the president of the University, also rebuked the fraternity: “To those who have misused their free speech in such a reprehensible way, I have a message for you. You are disgraceful. You have violated all that we stand for. You should not have the privilege of calling yourselves ‘Sooners.’ ”

But then President Boren took it a step too far and expelled two of the racist-chanting students. Boren said the students who played a leadership role had created a hostile learning environment for others. As he told the students, “You will be expelled because of your leadership role in leading a racist and exclusionary chant which has created a hostile educational environment for others.”

As legal scholar Eugene Volokh notes, there are two problems with Boren’s statement and his expulsion of the students. The first problem, says Volokh, is that “racist speech is constitutionally protected, just as is expression of other contemptible ideas; and universities may not discipline students based on their speech.” The second issue is that, “Similar things could be said about a vast range of other speech.”

Students talking to each other about a student group event about how Hamas has it right? (The Charter of Hamas, recall, expressly says, “The Prophet, Allah bless him and grant him salvation, has said: ‘The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, (evidently a certain kind of tree) would not do that because it is one of the trees of the Jews.’ (related by al-Bukhari and Moslem).”) Why, that could be labeled leading an anti-Semitic and exclusionary discussion that, once it’s publicized on campus, creates a hostile educational environment for Jews.

We should all be able to agree that some speech—whether racist or anti-Semitic—ought to be appropriately condemned. But it is precisely because we can (almost) all agree about offensive language that we can be lead to support bad policies to oppose such speech. As Nicholas Troester says, “easy cases make bad law.”

People who study law know why hard cases make bad law–they’re idiosyncratic instances that are unlikely to repeat in a manner conducive to the generalizable form law must take, virtually guaranteeing unanticipated consequences–but easy cases do, as well.

[. . .]

It feels satisfying to expel people who were doing something that obviously wrong, who were doing it without shame; it feels good to be able to act with maximum force for a good cause. But it’s bad policy, because it won’t work as well on more complicated cases: we can’t throw everyone out who says anything some people find offensive.* There’s also a connection to the internet’s economy of shame: it feels good, or satisfying, to make someone lose their job for posting offensive material on the internet–no one’s going to feel too bad for those dudes who decided Curt Schilling mentioning his daughter was a good pretext to write vile, sexist stuff about her–but it’s no solution to anything. Sustainable practices–good, fair, stable practices–need a better context, need serious thought devoted to potential long-term ramifications, the difficulties of scaling up behaviors and institutions, and the facts of human fallibility when forgiving offenses or implementing justice. Most of all, there needs to be recognition that there are always a wide variety of options in play, and sometimes it makes sense to choose one other than the most extreme, even if it doesn’t feel as satisfying.

If we support expelling college students for “racist and exclusionary” speech we shouldn’t be surprised to find that the “bigoted and exclusionary” speech of Christians is soon banned from public life too.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).