A Multicultural Sorority?

[Kevin]

Originally Posted by starang21

does that make it frivilous? i think not. we're talking about a group being offended, and taking action upon being offended. whether or not they win, it doesn't mean that they'll be sanctioned. weren't you implying that there would be acton against them if they filed?

There could be. I can't think of a good faith cause of action here. It sounds like the group filed through the University, so if the University acts, it'd be subject to a Civil Rights case if the sorority wanted to fight it (which they won't).

[starang21]

Originally Posted by Kevin

There could be. I can't think of a good faith cause of action here. It sounds like the group filed through the University, so if the University acts, it'd be subject to a Civil Rights case if the sorority wanted to fight it (which they won't).

i'm willing to bet nothing happens to the group if they file. this is hardly something that can be looked at as "frivilous."

[Kevin]

Originally Posted by starang21

i'm willing to bet nothing happens to the group if they file. this is hardly something that can be looked at as "frivilous."

I don't think they'll file a federal case. As I said, there's no (real) cause of action for this sort of "discrimination." It's probably through the University, and no, nothing bad will happen to the group except that the University should probably tell them "sorry, but we can't adjudicate these things," which will probably not happen because they've already placed the sorority on social probation, "pending review." In the end, I suspect the sorority will subject itself to a few hours of sensitivity training, then agree to be on some sort of probation for the next semester or so because they want to protect their image.

[starang21]

Originally Posted by Kevin

I don't think they'll file a federal case. As I said, there's no (real) cause of action for this sort of "discrimination." It's probably through the University, and no, nothing bad will happen to the group except that the University should probably tell them "sorry, but we can't adjudicate these things," which will probably not happen because they've already placed the sorority on social probation, "pending review." In the end, I suspect the sorority will subject itself to a few hours of sensitivity training, then agree to be on some sort of probation for the next semester or so because they want to protect their image.

there isn't discrimination per se, and i think the local chapter's cage was rattled enough to for them (and others) to know that that's not the image they're wanting.

[SWTXBelle]

Okay, I'm trying not to get into much of this since I don't want anything I write as being construed as being a response from Gamma Phi, because it's NOT - anything I write is mine, and mine alone. I realize that most of you know that, but I just want to get that out there.

I think there are two issues that are being discussed:

1.) The actual event in question. Let it be noted that Gamma Phi has apologized, and is working with the university. I specifically asked what you thought would be a proper response, and received no answers, so I have to assume that everyone is okay with social probation and education. Heretofore there have been no calls for tar and feathering.

and

2.) The legality of a hypothetical response of the university. (Right now, all we know for sure is that the chapter is on social probation, but it is not clear that it is from the university or the HQ). It took four months for the offended parties to come forth, so who knows how long the university's investigation will take, or what actions will follow.

Some conflict is coming from a confusion between the two. I think it is possible for an action to be condemned as insensitive without it being illegal. A possible point is that those who filed a complaint with the university have no legal standing to argue for harm. So while they might not have a legal case, they certainly have a right to claim they are offended. But let's not confuse a moral right with a legal one.

[Kevin]

Originally Posted by SWTXBelle

Some conflict is coming from a confusion between the two. I think it is possible for an action to be condemned as insensitive without it being illegal. A possible point is that those who filed a complaint with the university have no legal standing to argue for harm. So while they might not have a legal case, they certainly have a right to claim they are offended. But let's not confuse a moral right with a legal one.

Condemnation for insensitivity is fine. Social probation ain't.

(in a world where the University refused to overstep, that is). As it is, the chapter seems to be trying to smooth over their public image and take corrective action because they want to appear sensitive to how outsiders perceive them.

I don't think social probation which was initiated just a few weeks before finals is really that big a deal.

[kddani]

Real life is not a constitutional law final. Constitutional law is never black and white.

Kevin, you're in no position to be making clear-cut, black-and-white determinations. Even if you were a licensed, practicing attorney you wouldn't be. But you're not licensed, you're not practicing and your practical experience is as a law clerk in family law.

For instance, you posted this:

Originally Posted by Kevin
If they brought it as a federal case, they can count on being sanctioned by the court for filing a frivolous action.

That is simply not true in reality. Very very rarely does anyone get sanctioned by the court for filing a "frivolous" action. You made an absolute statement "they can count on being sanctioned" without anything to back it up. What you personally think is "frivolous" is not necessarily what a court would deem frivolous. Especially a district court, where any federal action would be filed. This is a great example of you talking out of your ass in absolute terms and having no authority for what you're saying.

Thanks to Mysticat for helping you prepare for your con-law final. I don't have time to do the Lexis research (nor do I have a free account like you do) nor do I have time to check up on your citations. However, I will say that you need to stop talking out of your ass in such absolute terms and saying what a court will or will not do on a myriad of claims. You don't know, nor does anyone else know for certain.

[DSTCHAOS]

Originally Posted by kddani

Real life is not a constitutional law final. Constitutional law is never black and white.

Thank God. That class was a nightmare.

This discussion is why SWTX made the moral vs. legal distinction. My head is exploding. Kevin is talking about court cases as support for a university's inability to regulate student conduct (student organizations included).

Are university regulations always an issue of legality or are many of them attempts to take "moral stances" and hold students accountable? This situation isn't like students being expelled from college for an honor code violation--that seems to be a university regulation that holds more legal significance. So an organization that takes social probation (or whatever university imposed sanction on the organization) to court may have made it more of a legal issue than it initially was.

[kddani]

Originally Posted by DSTCHAOS

My head is exploding. Kevin is talking about court cases as support for a university's inability to regulate student conduct (student organizations included).

And I think that's exactly why he's doing it - to make your head explode. The vast majority of GC cannot argue back because he's using a lot of legalese and trying to input various standards, etc. It's a diversion from an actual discussion about what happened and people's feelings about it.

[starang21]

Originally Posted by kddani

And I think that's exactly why he's doing it - to make your head explode. The vast majority of GC cannot argue back because he's using a lot of legalese and trying to input various standards, etc. It's a diversion from an actual discussion about what happened and people's feelings about it.

i don't disagree with him whether or not this would actually hold up in a court of law. however, whether or not it's legally viable doesn't change the fact that it's morally wrong. you guys are arguing two different things.

[DSTCHAOS]

Originally Posted by starang21

you all are arguing two different things.

DUH.

[AOE2AlphaPhi]

Originally Posted by DSTCHAOS

Thank God. That class was a nightmare.

I'm totally working on a Con Law final right now, and I'll definitely agree with you there!

[Kevin]

Originally Posted by kddani

Real life is not a constitutional law final. Constitutional law is never black and white.

That depends on whether you're talking to Scalia or Brennan

Kevin, you're in no position to be making clear-cut, black-and-white determinations. Even if you were a licensed, practicing attorney you wouldn't be. But you're not licensed, you're not practicing and your practical experience is as a law clerk in family law.

I never represented otherwise and I don't see how any of that is particularly relevant to anything. You can tell me it's not black and white, but I'll bet you can't tell me of a similar situation where strict scrutiny was not applied to a content based restriction.

[MysticCat]

Originally Posted by Kevin

So you could make an argument for an ex post facto ad hoc review of speech to determine whether a group should be sanctioned for the content of their speech could pass strict scrutiny and keep a straight face?

Sure. I'm a lawyer. I can argue anything with a straight face.

BTW, in suggesting that there's a problem with an ex post facto review of speech to determine whether it was sanctionable, surely you're not suggesting that it would have been preferable for UND to engage in peremptory enforcement or prior restraint, 'cause talk about things the courts tend not to like.

As for ad hoc, how do we know it was really ad hoc? Maybe it was, or maybe there's more there that we don't know about.

Let's apply strict scrutiny.

Let's don't, because as I've already said, we don't know nearly enough to really flesh out such an application. We're just guessing at what really happened, with our main source of info being an article in the student newspaper -- not necessarily the source I'd want to count on.

You said it youself:

I think the school would assert that providing a safe and comfortable learning environment is a compelling governmental goal.

(Emphasis mine. Of course, kudos for at least looking at the University Code of Conduct.) That might be what the school would assert and it might not. All we've got is speculation. We don't know nearly enough to play the "somebody should sue" card.

Look, UND might indeed go down the tubes if a suit were filed. But it's not a slam dunk. (I tend to think, based on the minimal information we have, that a plaintiff might not even make it past a motion to dismiss -- I still haven't seen anything that actually says UND has taken any action against the chapter. The article you cited seems to make it as likely that Gamma Phi Beta HQ or campus Panhellenic took the initial action.) To suggest otherwise is simply doesn't further any discussion.

And by the way, with regard to this, which I missed earlier:

Originally Posted by Kevin

42. U.S.C. 1983 says the school can't [legally] do this.

42 U.S.C. § 1983 says nothing of the sort. Section 1983 only allows someone to sue for violation of civil rights; it gives the courts jurisdiction over such claims. But it does not create any substantive rights -- the right in question must be found elsewhere (presumably, in this case, the First Amendment). Section 1983 says nothing about what can and can't legally be done.

[Drolefille]

MysticCat, have I mentioned how awesome you are lately?

Cause I don't think I have.