Home
/
RELIGION & LIBERTY ONLINE
/
Easy Cases Make Bad Law
Easy Cases Make Bad Law
Mar 18, 2025 12:13 PM

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 e 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 e 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 plicated 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.

Comments
Welcome to mreligion comments! Please keep conversations courteous and on-topic. To fosterproductive and respectful conversations, you may see comments from our Community Managers.
Sign up to post
Sort by
Show More Comments
RELIGION & LIBERTY ONLINE
The consuming self as tyrant
“Consumerism is, quite precisely, the consuming of life by the things consumed. It is living in a manner that is measured by having rather than being.” -Richard John Neuhaus In a free economy, we each serve distinct roles as both producers and consumers. As producers, we create and serve, leveraging the work of our hands to meet the needs of our neighbors. As consumers, however, we look to ourselves and our own needs. Consumption is good and necessary thing, but...
A holistic view of Christian vocation
In a society where personal identity is conveyed by one’s job title, it is of little wonder that the nation’s youth are so anxious about career choice. But what if your identity is found in Christ? What if living vocationally has nothing to do with finding the “perfect” career? ...
Upstream: A Conversation on Artist Renee Radell
On the Upstream segment of this week’s Radio Free Acton podcast, I discuss the visual art of Renee Radell with Gregory Wolfe. Radell’s work is the subject of Renee Radell: Web of Circumstance (Predmore Press, 2016, 220 pages, $80), a book presenting a career overview of her artistic efforts. In his review of Web of Circumstance for The University Bookman, Wolfe – founder and editor of Image magazine – determines the panying text by Eleanor Heartney superficial in contrast to...
The monopoly markup
Note: This is post #48 in a weekly video series on basic microeconomics. Ever wonder why pharmaceuticals are so expensive? In this video by Marginal Revolution University, Alex Tabarrok shows how low elasticity of demand results in monopoly markups. This is especially the case with goods that involve the “you can’t take it with you” effect (for example, people with serious medical conditions are relatively insensitive to the price of life-saving drugs) and the “other people’s money” effect (if third...
The archbishop of Canterbury eyes a ‘broken’ economy
Defending the free market and advocating for ever-greater access to capital is of paramount importance during uneven economic patches. That is how Christians should ments from Justin Welby, the archbishop of Canterbury, who recently said that the economy is “broken.” The archbishop cited familiar economic data of unequal economic growth, youth hopelessness, and questions about wage stagnation. Many of these are part of a ing report from the IPPR’s Commission on Economic Justice, of which he is a member. But...
Erasing the cross: Public vs. private sector
The European discount grocery chain Lidl stirred controversy by removing the cross from its products’ labels, so as not to give offense. Eagle-eyed consumers noticed that Eirdanous, its Greek food line, featured a picture of a blue-domed Greek Orthodox Church by the sea – but unlike every other such church, its cupola was not topped by a cross. pany Photoshopped the symbol of Christ’s victory over death and Hell off of the Anastasi(in Greek, literally, “resurrection”) Church inSantorini. Perhaps to...
5 Facts about the 9/11 aftermath
Today marks the 16th anniversary of the worst terrorist attack ever on American soil. Here are five facts you should know about what happened in the aftermath of the events on September 11, 2001: 1. It took 99 days—until December 19, 2001—for thefires at Ground Zeroto be extinguished.Cleanup at Ground Zero wasn’t pleted until May 30, 2002. It took 3.1 million hours of labor to clean up 1.8 million tons of debris at a total cost of cleanup of $750...
Explainer: What you should know about single-payer healthcare
Today, Vermont Senator Bernie Sanders is unveiling his legislation for a single-payer healthcare system. Here is what you should know about single-payer systems and Sanders’s proposal: What is single-payer healthcare? In a single-payer healthcare system, the government pays for all medically necessary service for of all citizens, regardless of e or ability to pay. Does the U.S. have a single-payer system? In the U.S. most citizens over the age of 65 and people under 65 who have specific disabilities qualify...
Missiles, threats and sanctions: How should the United States respond to North Korea?
The North Korean people are not the same as the North Korean regime. Photo: “Pyongyang, North Korea” by (stephan) (CC BY-SA 2.0) Today the United Nations Security Council will meet and vote on a resolution to impose new restrictions on North Korea. This resolution is a direct response to recent North Korean missile activity and threats from Kim Jong Un. On July 4, North Korea tested an intercontinental ballistic missile and claimed it could hit any nation on Earth and...
7 Figures: Income and poverty in the U.S.
The U.S. Census Bureau released its latest report on e and poverty in the United States today. Here are seven figures from the report you should know about: 1. Real median household e increased 3.2 percent between 2015 and 2016—from $ 57,230 to $59,039. (This figure surpasses the previous high reached in 1999.) 2. Real median es in 2016 for family households ($75,062) and nonfamily households ($35,761) increased 2.7 percent and 4.5 percent, respectively, from their 2015 medians. (This is...
Related Classification
Copyright 2023-2025 - www.mreligion.com All Rights Reserved